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Rutgers University 



J 2 93*% BY 







As THE STORY of Federalist thought and action is incomplete 
without John Marshall, so the story of Jacksonian Democracy 
is not complete without Roger B. Taney. Taney's place in 
the democratic movement has never been accurately appraised 
and the many implications of his theory are still to a certain 
extent unappreciated. Biographies of him have been written, 
but until now no one has attempted a thorough discussion of 
his political theory and his contribution to constitutional law. 
Both as a Jacksonian statesman and as an American jurist of 
high rank he deserves such a discussion. This book is an 
attempt to contribute something to this aspect of Taney's 

I owe my thanks to Professor Everett S. Brown of the 
University of Michigan, who first suggested the possibility of 
this study and gave helpful advice at the beginning of the 
undertaking. I am indebted to Dr. Llewellyn Pfankuchen, 
of the University of Wisconsin, for carefully reading and 
criticizing practically the whole of the manuscript and for 
suggestions made at various stages of its preparation, and to 
Professor Ray A. Brown and Dr. John D. Lewis of the same 
University for helpful suggestions made in regard to par- 
ticular chapters. I am grateful to my wife, Essa Esarey 
Smith, for discerning suggestions in regard to style and con- 
tent and for help in proofreading. 


Rutgers University 
May 30, 1935. 








Taney's Early Life and Education 

Federalist Leader in Maryland 

As a Leader of Jacksonian Democracy 

Chief Justice of the Supreme Court 

Opinions of the Critics 




Early American Political Theory 
The Theory of Jacksonian Democracy 
Individual Rights are Not Natural Rights 
The Social Compact and Popular Sovereignty 
The Theoretical Background for Taney's Ideas 
The Citizen is Subject as Well as Sovereign 
The Status of Individuals in the State 


The Nature of Sovereignty 

Taney's Application of his Theory of Sovereignty 

The Government as the Agent of the Sovereign 

How the Sovereign Will is Expressed 





The Democratic Movement in America 

Oligarchy Against Democracy 

The Weapons of a Wealthy Class 

A Group Which Threatens Popular Sovereignty is a 

Public Enemy 

The Government must serve only the Sovereign People 
Taney's Place in Jeffersonian Democracy 
The Danger in Chartered Privileges 
The Maintenance of the General Will 




Sovereignty in the United States 

The Sovereign States before the Adoption of the 


Divided Sovereignty Under the Constitution 
The Supreme Court as Arbiter between the two 


The Constitution as the Supreme Law 
Taney did not belong to the States' Rights School 
The Antecedents of Taney's Theory 
The Power of the National Government 
Limitations on Federal Power 
The Power of the States 



The American Conception of Police Power 
Police Power in Conflict with Chartered Privileges 
The Social Importance of Strict Construction of Charter 


The Conservative Viewpoint 
The Significance of the Charles River Bridge Decision 


POWER 121 

The Liberalization of the Judicial Attitude toward 

Police Power Legislation 
The State's Power over Immigration 
The Relation between the Police Power and the 

Commerce Power 

The Power to Regulate the Liquor Traffic 
Taney's Definition of Police Power 
Taney's Conception of the Police Power an Outgrowth 

of his Doctrine of State Sovereignty 


Taney's Personal Viewpoint 
The Legal Status of Slavery 


Taney's Opinion 

The Historical Background of the Decision 

The Facts in the Case 

The Question of Jurisdiction 



Citizenship in the United States 

Slavery in the Territories 

The Constitutional Status of Property in Slaves 

State Laws and Slavery 

The Constitution is the Recognized Expression of the 

Sovereign Will 

The Explanation for the Breadth of the Decision 
Public Opinion on the Decision 
The Function of the Court as an Interpreter of the 

Sovereign Will 


The Legal Nature of Individual Rights 

Free Speech 

Property Rights in Time of War 

The Case of John Merryman 

The Writ of Habeas Corpus Could be Constitutionally 

Suspended Only by Congress 
Military Dictatorship 

The Issue of Law Against the Necessity of War 
The Background of Taney's Theory 
Taney's Decision was Ignored by the Executive 
Public Opinion on the Decision 


The Supremacy of the State 

The Legal Nature of the State 

The Supreme Law 

The Importance of the Court 




INDEX 239 




ROGER B. TANEY was a Federalist who became a chief among 
the advisers of the rough hewn patron saint of democracy 
who ruled the United States from 1829 to 1837. Later as 
Chief Justice of the Supreme Court he wrote into the law 
principles which may properly be regarded as the legal ex- 
pression of the democracy that is called Jacksonian. In fact, 
the political theory of Jacksonian democracy is more com- 
pletely developed and more logically stated in Taney's writ- 
ings and speeches than anywhere else. 

With more vision than President Jackson, and a more 
coherent political theory, Taney looked to the great ends of 
government. | In the inner circle of the Jacksonjans^and out 
of it, he champlc^^ w ftho ut compromise 

toward the realization of the ideal that assures to ^all citizens 
an equal share in the sovereignty of the state and equality of 

A j y,,, , , ,, , , , ,* *, , ^.^.fc.wiB- 

status before their government. He conceived of Jie law^as 
a tower of refuge to which men might repair for protection 
equally in times of cnsTs'ahcTof peace. The defender of con- 
stitutional government, Jbte.w^s. not f afraid tJ3Ste"f Re jjowers 
of the state in broad free terms because he thought^of _the^ 
people as sovereign, and with the-, faitLsi, the true democrat 
he saw no need for them to fear themselves. \ 

On more than one occasion he stirred up great criticism 
and aroused hostility of the most bitter sort, but with the 
great end in view he went serenely on. The incidents of the 
present were not as important to him as the principles which 
he never lost sight of even in the midst of the storm. Be- 
cause he was a man of consistence and of a stubborn courage 



that utterly disregarded vocal public opinion he has gone 
down in history under a shadow. Few people know the truth 
about him. To the average man, who knows anything at all 
about him, he is the author of the Dred Scott decision. And 
this single fact suggests a nebulous shadow of iniquity. The 
great Jacksonian's contributions to democratic government 
have been forgotten. That, perhaps, is a penalty of his con- 
sistency and his lack of political finesse. 

In order to understand how these things came to be, one 
must look into the background from which Taney came and 
to the surroundings in which he worked. 

Taney's Early Life and Education 

Roger Brooke Taney was born March 17, 1777 on a Mary- 
land plantation. His father was Michael Taney, a planter 
politician and an avid reader who began planning very early 
a great career in law and politics for his son. His mother, 
Monica Brooke Taney, was a woman of unusual charm, sym- 
pathy and goodness of character. As her son, Roger, records: 
"If any of the plantation-servants committed faults, . . . they 
came to her to intercede for them j and she never failed to use 
her influence in their behalf, nor did she ever hear of a case 
of distress within her reach, that she did not endeavor to 
relieve it. I remember and feel the effect of her teaching to 
this hour [September, i854]. wl The kindness and con- 
sideration for the feelings of others that were typical of his 
dealings with his associates seem to have been the projection 
of these same traits in his mother's character and show to 
some extent the bond of understanding and sympathy be- 
tween them. 

Roger Taney's parents were Catholics, and for that reason 
their education had been influenced by the discriminative 

1 S. Tyler, Memoir of Roger Brooke Taney, pp. 26-27. All biographical 
material not credited to specif c sources is from this volume. 


English laws which had been put in force in the colony 
founded by Lord Baltimore. His father had been educated 
in France and although his mother came from a wealthy 
family of good social standing and some prominence, since 
she was a girl, she had had no formal schooling. The dis- 
criminations against the education of Catholics having been 
done away with by the American Revolution, it was taken 
for granted that the Taney children would be educated. 

When Roger was eight years old, he was sent with his 
brother and sister to the nearest school, three miles away. 
Their attendance was irregular, because they walked to and 
from school and in bad weather had to stay at home. But 
Michael Taney was determined that his children should be 
educated, in spite of difficult details. Consequently, after 
an elementary education obtained in country schools and 
from a tutor employed by the family, Roger was ready, when 
fifteen years old, to go to college. His father decided to 
send him to Dickinson College at Carlisle, Pennsylvania. 

The life of the young Taney at college was pleasant as 
well as highly profitable. He enjoyed sports and games and 
gladly took part in them, but he was at the same time a 
thorough student. He always prepared his lessons well. In 
addition, he liked books and read much more than was 
actually required by his teachers. This reading, he tells us, 
was "desultory, and some of it not wisely selected." 

Outstanding among the four members of the Dickinson 
faculty of Taney's time was Doctor Charles Nisbet, president 
of the college. He taught ethics, logic, metaphysics, and 
criticism. Some of his lectures were on economic subjects, 
and included much that later came to be called sociology. 2 
He was a brilliant scholar who had been persuaded to come 
over from Scotland to head the college at its beginning. He 
was not only a great scholar, but a devout and orthodox 

3 J. H. Morgan, Dickinson College, p. no. 


Calvinist as well. Although he was a man of firm convictions 
with a deep seated aversion to slipshod methods of work, he 
was also a man of charming personality. Taney and other stu- 
dents spent many evenings in the Nisbet home where they 
were charmed and instructed by Doctor Nisbet's discussion 
of a wide range of subjects. In the classroom Doctor Nisbet 
gave voluminous lectures, but he also encouraged his students 
to think for themselves and form opinions of their own. 

Some idea of the rigor of the intellectual diet which he 
prescribed for his pupils may be gathered from a letter which 
he wrote to a friend in 1790. Referring to a group of stu- 
dents who were studying for the ministry under his guidance 
he said, "They promised to attend at least two Years, & 
longer if I should find it necessary, ... I have delivered to 
them already three hundred & Seventy five lectures on the 
first 29 Chapters of the Westminster Confession of Faith, & 
I hope they will stay with me till I get through it." 3 

The old clergyman expressed his convictions with a fervor 
and a frankness that were sometimes impolitic. In Scotland 
he had made enemies by supporting the cause of the colonists 
during the American Revolution. In America he condemned 
the French Revolutionists with such ardor that he aroused 
the hostility of some of their American sympathizers. He 
had little faith in republican institutions and was very cynical 
about the ability of the Americans to maintain a stable and 
effective government. Taney and many of the other students 
did not copy down such sentiments when they were expressed 
in class. To them such ideas were rank heresy. In spite of 
what they considered his lapse on this one subject, Doctor 
Nisbet's students held him in high regard, and on many of 
them his character, as well as the opinions he expressed, made 
i profound impression. 

It is safe to assume that Doctor Nisbet's personality left a 

8 Bulletin of the New York Pu&Uc Library, I (1897), 118. 


lasting influence on Taney's life. Taney was at Dickinson 
during a formative period in his life, from the time he was 
fifteen years old until he was eighteen. Certainly in his 
public career he later revealed traits much like those o Doc- 
tor Nisbet. He had strong convictions and he sometimes 
expressed them with more force than tact. He was a Roman 
Catholic with the stubborn integrity and idealism of a Scotch 

Taney graduated from college in 1795 as valedictorian of 
his class. The valedictorian at that time was elected by the 
class, so the honor was as much a tribute to his popularity as 
to his scholarship. After spending a winter at home he went 
to Annapolis, Maryland, in the spring of 1796, to begin the 
study of law. 

He read law in the office of Jeremiah Townley Chase, 
one of the judges of the General Court of Maryland. Judge 
Chase had been a member of the Maryland convention which 
ratified the federal Constitution in 1788. He had been one 
of eleven members, out of the seventy-four present, who 
voted against ratification on the ground that the Constitution 
lessened the power, and seemed to threaten the sovereignty, 
of the States. The minority had fought hard for adding a 
bill of rights to the Constitution. 4 One cannot assume from 
this that Judge Chase remained a radical States 3 rights man 
all his life, 5 but his appreciation of the dignity of the States 
and his advocacy of a bill of rights reveal something of his 
political philosophy which must not be forgotten when one is 
considering the influence that he would exert on a young law 
student reading under his direction. 

At that time Annapolis was the best place in Maryland 
to study law. During the sessions of the General Court, 

* J. Elliot, The Debates in the Several State Conventions on the Adoption of the 
Federal Constitution, II, 547-56. J. T. Scharf, History of Maryland) II, 543, 547. 

5 Samuel Chase was also one of the minority of eleven. His later intemperate 
devotion to the Federalist cause is well known. 


Taney heard and saw some of the greatest lawyers of Amer- 
ica. Luther Martin, Philip Barton Key, John Thompson 
Mason, and Arthur Shaaf were among those who impressed 
him most. As he listened to these men he was stirred by 
ambition, and the hope that some day he might occupy a 
position at the bar as enviable as they held. Toward this end 
he worked diligently at his studies, reading as much as twelve 
hours a day for weeks at a time. 

Federalist Leader In Maryland 

He was admitted to the bar in 1799 and, mainly because of 
the request of his father, returned to his home county of 
Calvert to begin the practice of law. With his father's en- 
couragement he became a candidate for the State legislature, 
and was elected. His work in the legislature won for him a 
position of respect in his own county and in the State. He 
confidently expected to be reflected, but the Federalist party, 
of which he was a member by birth and environment took 
the unpopular side of a question as to how presidential 
electors should be chosen and he was defeated. 

After this untimely interruption of his political career, 
Taney decided to leave Calvert County and go to some place 
where the opportunities for advancement in law practice were 
greater. After giving the matter careful consideration he 
decided to locate in Frederick, which next to Annapolis and 
Baltimore was the best place in the State to build up a 
profitable practice at that time. 

In 1803, he was one of the candidates nominated for the 
House of Delegates by the Federalists. The county was 
predominantly Republican but he and John Hanson Thomas, 
one of his fellow candidates, conducted a vigorous speaking 
campaign. 6 One of their early appearances was at a Republi- 
can barbecue, which they attended at the invitation of one of 

6 Members of the House of Delegates were elected from Multi-member districts. 


the Republican leaders. 7 When the most militant Republican 
manager of the barbecue heard. of the invitation he said that 
these two Federalists should be "thrown into John Swearin- 
gen's mill-dam" if they came. 8 Taney and his partner went 
to the barbecue in the hope that they could do a little mis- 
sionary work. When the Jeffersonian who had wanted to 
throw them into the mill-dam saw them coming he left in 
high indignation with the explanation that "there were so 
many d d Federalists there." Finally, as a result of the 
commotion which their coming had caused, the two Federalist 
missionaries went back to town with some of their friends 
and ate dinner at a tavern. In the evening they had a chance 
to make speeches, although according to the Federalist Fred- 
erick-Town Herald, the Republicans made a violent clamor 
until they wore themselves out. 9 

Other barbecues and more clamoring followed. Charges 
and counter charges were hurled back and forth. The Re- 
publican Advocate called Taney an aristocrat. "Precious 
representatives, indeed, would the people have in such men 
as Roger B. Taney and his little man Sancho," they said. 10 
At the end of this campaign of barbecues and invective the 
Federalists were defeated. Taney settled down once more to 
the practice of law. 

In 1807, a wave of indignation swept over the United 
States as a result of the "Chesapeake Affair." On the Fourth 
of July a public meeting was held in Frederick, and a com- 
mittee was appointed to draw up resolutions expressing the 
feeling of the people. Taney was one of the members of the 
committee. The committee drew up a set of resolutions con- 
demning the attack of the British warship on the Chesapeake. 

7 Frederick-T 'own Herald, September 17, 1803. 
* Ibid., October i, 1803. 

9 Ibid.) September 17, 1803. 

10 Quoted in E. S. Delaplaine, "Chief Justice Roger B. Taney His Career at 
the Frederick Bar," Maryland Historical Magazine, XIII (1918), 124. 


One of the resolutions was, "That we pledge to the govern- 
ment, our lives and fortunes to support them in obtaining re- 
dress for this unexampled insult to our national honor, and 
that we will at all times prefer prompt and decisive war to 
dishonorable peace." The resolutions were unanimously 
adopted by the meeting. 11 

Taney, in company with most of the Federalists, opposed 
American entrance into war with Great Britain in 1812, but 
as soon as war was declared he supported the government. 
The Federalist party in Frederick County was split into two 
groups on the war issue. Those who followed Taney in sup- 
porting the government were called "Goodies," and he was 
called "King Coody." It was during the war that Taney's 
brother-in-law, Francis Scott Key, wrote "The Star Spangled 
Banner." Tyler calls "The Star Spangled Banner" "the song 
of Maryland Federalism." 12 But it was really the song of 
only part of the Federalists, for the two factions were in wide 
disagreement on the war issue, and feeling was sometimes 
very bitter between them. 

In 1816, Taney was elected to the Maryland Senate. By 
that time the anti-war Federalists had forgiven him and ap- 
proved of his selection. One of his first official acts was to 
introduce a series of resolutions condemning the congressional 
caucuses which nominated candidates for president. 13 Dur- 
ing his five years as State senator he took a creditable part in 
the business of the senate. His vote on some questions is 
interesting, and perhaps revealing. In 1818, he voted against 
a bill to tax "all banks or branches thereof in the state of 
Maryland, not chartered by the legislature." 14 This act, 
aimed at the branch of the Bank of the United States, was 
passed, and its attempted enforcement led to the famous case 

^Frederick-Town Herald, July II, 1807. 

"Tyler, op, cit., p. 108. 

18 Votes and Proceedings of the Senate of Maryland, January 2, 1817, p. 19. 

" Ibid., February n, 1818, p. 40. 


of McCulloch v. Maryland. 15 In 1820, Taney was one of 
four out of fourteen senators who voted in favor of a bill "to 
prohibit the pernicious practice of cock-fighting and gaming 
within this state." 16 In the next session he voted against the 
repeal of the law prohibiting the importation of slaves into 
Maryland. 17 He was again in the minority. Taney's stand- 
ing as a lawyer was recognized by his appointment to numer- 
ous committees dealing with legal matters and many of the 
statutes concerning courts of law, of equity, and the orphans' 
courts, which were passed during this period, were drawn up 
by him. 18 

In 1823, Taney moved to Baltimore. Not long after- 
ward he became attorney for the Union Bank of Maryland, 
and also one of its directors. 19 It is possible that his later 
hostility to the Bank of the United States was partly a result 
of his connection with this state bank. The president of the 
Union Bank, Thomas Ellicott, was a man of extraordinary 
intelligence and vigor. He and Taney were often in consulta- 
tion. Ellicott's views on the Bank of the United States 
were known to be similar to those later expressed by Taney 
when he took a prominent part in the war on the Bank. 20 In 
1826, Taney was counsel for Solomon Etting, senior director 
of the Union Bank, in a suit against the Bank of the United 
States. The chicanery of the officials of the Bank of the 
United States in the incidents surrounding this case may also 
have left a lasting impression on him, 21 

' By the time he moved to Baltimore Taney had become 
recognized as one of Maryland's greatest lawyers. William 

^4 Wheaton, 316. 

16 Votes and Proceedings of the Senate of Maryland, February 2, 1820, pp. 
49> 50. 

17 Ibid., January 10, 1821, p. 19. 

18 Tyler, op. cit., p. 120. 

19 B. C. Steiner, Life of Roger Brooke Taney, p. 83. 

20 J. E. Semmes, John H. B* Latrobe and His Times, pp. 399-400. 
31 Steiner, op. cit., pp. 92, 93. 


Pinkney had died 5 Luther Martin was a wreck. It was an 
opportune time for Taney to take the leadership o the bar. 
In 1825, he was admitted to practice before the Supreme 
Court of the United States. From then on he appeared as 
counsel in cases before the Supreme Court at not infrequent 
intervals, often associated with other leading lawyers of the 
time. In 1826, Justice Story, writing to a friend, referred to 
him as "a man of fine talents." 22 In 1827, Taney's standing 
as a lawyer in his own State was recognized when a governor 
of the opposite political party appointed him attorney general 
upon the unanimous recommendation of the Baltimore bar. 

As A Leader of Jacks oman Democracy 
About the time he moved from Frederick to Baltimore Taney 
changed his politics. The Federalist party had been in its 
death throes for a good many years. The bitter opposition 
of its leaders to the War of 1812 sealed its doom. Taney, 
and many other Maryland Federalists, had had little patience 
with the conduct of the bitter-enders. When the party ex- 
pired, some of its erstwhile members became National Repub- 
licans and later Whigs, while others joined the ranks of 
those who followed Andrew Jackson. Taney was in the latter 
group. In 1825, when the election of a president was thrown 
into the House of Representatives, John Quincy Adams re- 
cords in his diary that Representative Warfield reported that 
he had been urged by Charles Carroll of Carrollton and Mr. 
Taney of Baltimore to vote for Jackson. Carroll and Taney 
had argued that if Adams was elected his administration 
"would be conducted on the principle of proscribing the 
federal party." 23 

Federalists had been attracted to the support of Jackson 
in the campaign of 1824 by the publication of some of his 

22 W. W. Story, Life and Letters of Joseph Story, I, 493. 

23 February 7, 1825, Memoirs of John Quincy Adams, edited by C. F. Adams, 
VI, 499- 


correspondence with Monroe in :8i6. 24 Jackson had then 
been trying to get Monroe to appoint a former Federalist, 
Colonel William H. Drayton, Secretary of War. Before the 
war Colonel Drayton had been a Federalist, but as soon as 
war was declared he had sprung to the defense of his country. 
"Such a man as this," wrote Jackson, "it matters not what he 
is called will always act like a true American/ 725 Jackson also 
advised the President to avoid party and party feeling in 
selecting his cabinet members. "Now is the time to extermi- 
nate the monster called party spirit," he said. 26 A few 
months later he wrote again, and after strongly condemning 
the Hartford Convention brand of Federalists, said, "But I 
am of opinion that there are men called Federalists that are 
honest, virtuous, and really attached to our government, and, 
although they differ in many respects and opinions with the 
Republicans, still they will risk everything in its defense." 27 
Such sentiments could not fail to appeal to Federalists, now 
left without a party and not knowing which way to turn. 
Some, among them Taney, were drawn to support Jackson. 
Some of these later found Jacksonian company and Jacksonian 
^policies uncongenial and became Whigs. 28 Taney however, 
finding himself in harmony with the fundamental principles 
of Jacksonian Democracy, remained a Democrat. 

In 1831, after the disrupting influence of the grim Cal- 
-4ioun and the beautiful Peggy O'Neil had broken up Jack- 
\ son's first cabinet, Taney was appointed Attorney General of 
"the United States. As Attorney General he became one of 
'"Jackson's most trusted advisers, his influence being of most 
significance in connection with Jackson's policy toward the 
'Bank of the United States. Later, as Secretary of the Treas*- 
\iry he was closer to the President than any other member of 

^ J. Parton, Life of Andrew Jacks on, II, p. 356. 

25 Ibid., p. 358. *lbid., pp. 360-61. 

27 Ibid., p. 367. ^Charles Carroll was one of these. 


his cabinet. Perhaps the reason was, as one writer puts it, 
he was "the most like Jackson in the vigor of his blows." 29 
A hostile Senate rejected Taney's appointment as Secre- 
tary of the Treasury, but Jackson never forgot what he had 
done. In 1836, when Justice Duvall resigned his seat on the 
Supreme Court, Taney was immediately nominated to take 
his place. The Senate was still controlled by men who had 
come to hate him in the struggle over the rechartering of the 
Bank. Chief Justice Marshall, although he bitterly disliked 
Jackson, had a high regard for Taney's legal talents, and 
privately endeavored to get his appointment confirmed. 30 
The Senate, however, refused to confirm the appointment. 

Chief Justice of the Supreme Court 

Less than a year later Chief Justice Marshall died and Jack- 
son nominated Taney to succeed him. The political com- 
plexion of the Senate had changed since Taney's previous 
rejection, and this time his appointment was confirmed, 
although his enemies still strenuously opposed him. Upon 
being informed of the Senate's confirmation of his appoint- 
ment, Taney wrote Jackson a letter of appreciation, in which 
he said: 

I feel that the first letter I write after the receipt of this 
intelligence should be addressed to you, to express the deep sense 
I shall ever retain of the constant kindness with which you have 
supported me, until you have finally placed me in the high station 
which I now fill, and which is the only one under the Government 
that I ever wished to attain. There are indeed circumstances con- 
nected with my appointment, which render it even more gratifying 
than it would have been in ordinary times. In the first place I 
owe this honor to you to whom I had rather owe it than to any 
other man in the world, and I esteem it higher because it is a token 
of your confidence in me. In the second place I have been con- 

20 Claude Bowers, The Party Battles of the Jackson Period, p. 140. 
30 Tyler, op. tit., p. 240. 


firmed by the strength of my own friends, and go into the office 
not by the leave, but in spite of the opposition of the men who 
have so long and so perseveringly sought to destroy me, and I am 
glad to feel that I do not owe my confirmation to any forbearance 
on their part. . . . And Jt is a still further gratification, to see, 
that if providence spares our lives, it will be the lot of one of the 
rejected of the panic Senate, as the highest judicial officer of the 
country to administer in your presence and in the view of the 
whole nation, the oath of office to another rejected of the same 
Senate, when he enters into the first office in the world, and to 
which it is now obvious that an enlightened and virtuous people 
are determined to elect him. The Spectacle will be a lesson; 
which neither the people nor politicians should ever forget. 31 

Henry Clay had been one of the leaders in the Senate 
against the confirmation of Taney. After he had observed 
Taney's work as Chief Justice he changed his opinion of him 
and sought an interview in order that he might tell Taney 
of his change of heart. According to Reverdy Johnson he 
said to him, 

Mr. Chief Justice, you know that in my place in the Senate, 
before your nomination to the office which you now fill was sub- 
mitted to that body, as well as during its considerations, I said 
many harsh things of you. . . . But I now know you better. I 
have carefully and anxiously watched your course on the bench, 
and have sometime since become satisfied that I had done you 
injustice. I am now convinced that a better appointment could 
not have been made, and that the ermine, so long worn and 
honored by Marshall, has fallen on a successor . . . every way 
his equal, and I have sought this interview so to say to you. 32 

Taney came to the Supreme Court at a time when there 
seemed to be a need for a liberalization of the law. Marshall 
had been well suited for the task of welding a federation of 

81 Correspondence of Andrew Jackson, edited by J. S. Bassett, V, 390. 

82 Reverdy Johnson, at a general meeting of the bar of Baltimore, October 14, 
1864. Proceedings of the Bench and Bar of Baltimore y p. 18. 


thirteen suspicious states into a strong national union. Taney 
succeeded him when the nation was in the midst of a dem- 
ocratic revolution in politics, and a revolution in industry of 
far reaching importance. In his zeal to strengthen the 
Union, Marshall had sometimes given scant consideration to 
the power and position of the States. The industrial revolu- 
tion made necessary new laws regulating industry for the 
benefit of the whole people, and the democratizing of polit- 
ical institutions put the common people in a position where 
they could effectively demand laws protecting their interests. 
The decisions of the State courts began to show a liberal 
trend in the twenties. It was with the accession of Taney and 
other appointees of Jackson and Van Buren to the Supreme 
Court that it too developed a liberal trend in keeping with 
the spirit and need of the time. 

Taney's appointment, coming when it did, was a partic- 
ularly fortunate one for the development of American law. 
He was a great technical lawyer with a better legal training 
than any of his predecessors. 33 And happily he combined 
with his knowledge of the law a democratic philosophy and 
human sympathy which gave promise that his decisions would 
be made with a view to economic and social conditions, and 
not entirely from a coldly legalistic point of view. His asso- 
ciation with President Jackson and his conspicuous part in 
the struggle with the Bank had demonstrated, and perhaps 
strengthened, his sympathy for the common people and his 
mistrust of powerful corporations. His democratic political 
views are revealed in a letter which he wrote to Jackson in 
1838, part of which is here quoted: 

In large commercial cities, the money power is, I fear irresist- 
ible. It is not by open corruption that it always, or even most gen- 

33 F. R. Jones, "Roger Brooke Taney," The Green Bag, XIV (1902), 2j H. L. 
Carson, The History of the Supreme Court of the United States, I, 2915 E. 
Countryman, The Supreme Court of the United States, p. 51. 


erally operates. But when men, who have families to support who 
depend for bread on their exertions, are aware that on the one 
side they will be employed and enriched by those who have the 
power to distribute wealth, and that, if they take the other, they 
must struggle with many difficulties that can be thrown in their 
way, they are very apt to persuade themselves that that path is 
the best one in which they meet fewest difficulties and most 
favour, and surrender the lasting blessings of freedom and manly 
independence for temporary pecuniary advantages. They forget 
the grinding oppression that awaits them from the power they are 
contributing to establish, as soon as it is firmly seated in the saddle 
and no longer needs their support. . . . But one thing is clear, 
that if the effort to render the laboring classes of this country 
servile and corrupt and to destroy their independent spirit and self- 
respect shall be successful, that class of society who are striving to 
produce it, will be the first and most terrible victims of their own 
policy. The lessons of history upon this point are too plain to 
mislead us. 34 

Taney was Chief Justice o the Supreme Court from 1836 
until 1864. During that period he wrote something like 
three hundred opinions, only a very few of which were dis- 
senting opinions. His decisions when he spoke for the Court, 
and his few dissenting opinions as well, have with few excep- 
tions, been finally received as correct statements of the law. 35 
Only one of his opinions, that Jn the Dred Scott case, has 
been, looked upon with permanent hostility. 36 Among his 
most important decisions were the following: Charles River 
Bridge v. Warren Bridge f 7 in which he construed a corpora- 
tion's charter strictly, in order that the interest of the public 
might be protected ; License Cases, 38 in which he gave a 
liberal interpretation to the police power of the States; 

8 * Quoted in Charles Warren, The Supreme Court in. United, States History, II, 
36-37. By permission of Little, Brown & Company, publishers. 

85 G. W. Blddle, In Constitutional History of the United States as Seen in the 
Development of American Law, p. 125* 3 Ibid. y p. 198. 

87 1 1 Peters, 420. "* 5 Howard, 554. 


Genesee Chiej v. Fitzhugh^ which extended the admiralty 
power of the national government 5 the Dred Scott decision/ 
which denied the possibility of a Negro becoming a citizen 
of the United States, and declared that Congress had no 
power to abolish slavery in the Territories 5 Ableman v. 
Booth*' 1 which strongly upheld the power of the national 
government and its courts and their right to be free from State 
interference ; and Ex parte Merry man^ in which Taney 
held that the President has no power to suspend the writ of 
habeas corpus. 

Of the principles laid down in these decisions more will 
be said in future chapters. It may be noticed in passing that 
the decisions in the Charles River Bridge Case, the License 
Cases, and Ex $arte Merryman y are liberal decisions beneficial 
to human rights. The decisions in the Genesee Chief case 
and Ableman f o. Booth strengthen the power of the national 
government. The Dred Scott decision, coming at a time 
when feeling on the subject of slavery was waxing very hot, 
increased the bitterness of the Abolitionists and pulled down 
on Taney's head maledictions from which his reputation has 
not yet recovered. 

Opinions of the Critics 

Justice Benjamin R. Curtis, one of Taney 's associates on the 
Supreme Court, has left a vivid description of Taney as Chief 
Justice. Justice Curtis, it will be remembered, did not always 
agree with Taney 3 notable among his dissents was that in the 
Dred Scott case. In an address to the Boston Bar in October, 
1864., Justice Curtis said of Taney: 

In consultation with his brethren, he could, and habitually did, 
state the facts of a voluminous and complicated case, with every 
important detail of names and dates, with extraordinary accuracy, 

30 12 Howard, 44,3. * 19 Howard, 393. 

41 21 Howard, 506. ** Campbell's Reports, 246-70. 


and, I may add, with extraordinary clearness and skill. And his 
recollection of principles of law and of the decisions of the court 
over which he presided was as ready as his memory of facts. . . . 
His mind was thoroughly imbued with the rules of the common 
law and of equity law; and . . . when I first knew him he was 
master of all that peculiar jurisprudence which it is the special 
province of the courts of the United States to administer and 
apply. His skill in applying it was of the highest order. His power 
of subtle analysis exceeded that of any man I ever knew, a 
power not without its dangers to a judge as well as to a lawyer; 
but in his case it was balanced and checked by excellent common 
sense and by great experience in practical business, both public and 
private. . . . For it is certainly true . . . that the surpassing 
ability of the Chief Justice, and all his great qualities of character 
and mind, were more fully and constantly exhibited in the con- 
sultation-room . . . than the public knew, or can ever justly 
appreciate. There, his dignity, his love of order, his gentleness, 
his caution, his accuracy, his discrimination, were of incalculable 
importance. The real intrinsic character of the tribunal was 
greatly influenced by them, and always for the better. 43 

Taney's manner and bearing and the effectiveness of his 
language impressed all those who observed him in the court- 
room. John H. B. Latrobe, who was a young lawyer in 
Baltimore when Taney lived there, later said of him that he 
"appealed to court or jury in language so simple, yet so clear, 
that those who listened almost fancied they could do as well 
themselves, so great was this grand lawyer's faculty o state- 
ment and argument." 44 

When Taney died, October 12, 1864, many Republican 
papers, their viewpoint colored by the passions of war, re- 
membered the Dred Scott and Merryman decisions, and 
seized the occasion to comment on his career with rancorous 

43 A Memoir of Benjamin Robbins Curtis t II, 338-41. 

** "Reminiscences of Baltimore," read before the Maryland Historical Society 
in 1880, Maryland Historical Magazine, I (1906), 118. 


expressions that were as inappropriate as they were unjusti- 
fied. 45 However, there were some strong Republican papers, 
not so blinded by emotion, that acknowledged his greatness. 46 
The newsapers were not the only mediums of comment on 
the dead Chief Justice. The Atlantic Monthly 4 " 1 devoted an 
article to him, which after calling him a "judicial Calhoun" 
went on to say, "He denied the settled truths of science. He 
slandered the memory of the founders of the government and 
framers of the Declaration." One of his statements in the 
Dred Scott opinion was referred to as a monstrous "combina- 
tion of ignorance, injustice, falsehood and impiety." 

Someone else who modestly preferred to remain anony- 
mous wrote a pamphlet called The Unjust Judge. In regard 
to Taney's decisions it said, "A long series of opinions, too 
trite even to be quoted and too dull to be read, which would 
not confer distinction upon a judge of the most inferior 
judicatory in the land, and the Dred Scott decision, which 
would disgrace any man or jurist in Christendom, are an all- 
sufficient justification of the minority of the Senate" (who 
voted against his confirmation). 48 Summing up its judgment 
of him it said, "As a Jurist, or, more properly speaking, as a 
Judge, in which character he will be most remembered, he 
was, next to Pontius Pilate, perhaps the worst that ever 
occupied the seat of judgment." 49 

Time and the ultimate leaven of common sense work 
many changes in the opinions of men. When Chief Justice 
Hughes spoke at the unveiling of a monument to Chief 
Justice Taney in Frederick, Maryland in I93I 50 and referred 
to Taney's career as "one of the most distinguished careers in 

45 See Charles Warren, of. cit., II, 389. 
48 Ibid., p. 391. 

47 XV (1865), 151-61. 

48 The Unjust Judge, p. 7. 

49 Ibid., p. 67. 

The United States Daily 3 September 28, 1931. 


American annals" no one objected. There are few students 
of history and the law who would now disagree with him. 
The distinguished jurists of Taney's own age passed on him 
the same verdict that Hughes rendered in I93I. 51 Reverdy 
Johnson spoke with little exaggeration when he said, "And 
the calm judgment of posterity, uncorrupted or unaffected by 
partisan passion, will ratify the conclusion of the Bar of the 
Union that a purer and abler Judge never lived than Roger 
B. Taney." 52 

51 Tyler, op. cit. } pp. 486-516. 
**lbid., p. 498. 




WE SHALL see as we develop Taney's political theory that, 
although he was predominantly English in his attitude toward 
the law, his conception of the limitless power of the state 1 as 
a corporate political body is at some points strikingly similar 
to that of Rousseau. This belief in the sovereign power of 
the state is perhaps the outstanding feature of this theory. It 
will be noticed in his attitude toward groups within the state $ 
in his discussion of the status of individuals, whether aliens, 
citizens, or slaves j in his development of the police power 5 
and in the limits that he sets to the power of government 

As a thorough-going Jacksonian democrat Taney believed 
also in individual liberty. It is not always an easy task to 
reconcile authority with freedom. Rousseau tried to do it, 
but his reasoning has failed to convince all of his readers. 2 
However, it was becoming increasingly clear in Taney's time 
that in a complicated social world liberty under the law 
brings the largest amount of freedom to the greatest number 
of people. 

Although it is not unreasonable to assume, because of his 
excellent educational background and intellectual interests, 
that Taney was acquainted with many of the classics of the 
literature of political science, it would be a mistake to place 

1 The term, state, is used here in its general sense and not .as meaning- a State 
of the United States. When used to designate a State of the United States the 
word will be capitalized throughout this study. 

2 See F. Pollock, An Introduction to the History of the Science of Politics, pp. 
79-815 also W. A. Dunning, A History of Political Theories from 'Rousseau to 
Spencer, p. 19. 


too much credit for his political theory on the books that he 
read. Men of affairs do not get their political or economic 
philosophy simply by reading books. While there may be 
found in Taney's theory resemblances to Rousseau and other 
philosophers, it is possible in most such instances to find an 
American background which goes far to explain his views on 
the point at issue. Consequently, we must conclude that his 
environment and the play of the social and economic forces 
of his time, probably had as much to do with the develop- 
ment of his fundamental ideas as did any of the books that 
he read. 

Early American Political Theory 

The political theory of the American Revolutionary period 
was essentially that of John Locke. Briefly, Locke held that 
men have certain natural rights, chief among which are those 
of life, liberty and property, that government results from 
a compact between the individuals who compose the state, and 
that the state cannot take away the natural rights of men. 
This was the doctrine predominant in America during the 
period of the Revolution. The parallel with Locke's ideas is 
especially noticeable in the Declaration of Independence, 3 but 
it may also be found in a number of the State constitutions of 
the period. 4 The acceptance of Locke's ideas at that time 
was quite natural, since the theory developed to justify the 
English Revolution of 1688 could be used as effectively 
to justify the American Revolution of 1775. 

When the Constitution was framed some years after the 
close of the American Revolution, the radicals were no longer 

3 For a discussion of the connection between Locke's ideas and the Declaration 
of Independence see Carl Becker, The Declaration of Independence, Chap. 2. 

* Notably in the New Hampshire Bill of Rights (1792)5 the Massachusetts 
Constitution, Pt. i, article i (1780)5 the Maryland Declaration of Rights (1776). 
Perley Poore, The Federal and State Constitutions } pt. 2, p. 12945 pt. i, pp. 957, 


in control of affairs, but the theories o the political contract 
and of natural rights were still widely accepted. Federalist 
judges who had been leaders during the period of the Revolu- 
tion and doubtless influenced by the current thought of the 
time, used the doctrine of natural rights to protect the rights 
of private property. In 1798 Justice Samuel Chase said: 
I cannot subscribe to the omnipotence of a state legislature, or that 
it is absolute and without control, although its authority should not 
be expressly restrained by the constitution, or fundamental law of 
the state. . . . An act of the legislature contrary to the first great 
principles of the social compact, cannot be considered a rightful 
exercise of legislative authority. ... A few instances will suffice 
to explain what I mean. A law that punished a citizen ... for 
an act, which, when done was in violation of no existing law; a 
law that destroys, or impairs the lawful private contracts of citizens 
... or a law that takes property from A and gives it to B. It is 
against all reason and justice for a people to intrust a legislature 
with such powers; and, therefore, it cannot be presumed that they 
have done it. 5 

Chief Justice Marshall said in 1810: 

It may be doubted whether the nature of society and govern- 
ment does not prescribe some limits to the legislative power; and 
if any be prescribed, where are they to be found, if the property 
of an individual, fairly and honestly acquired, may be seized with- 
out compensation. 6 

The Federalists, who had been horrified by the disregard 
for private property rights during the Confederation period, 

* Caldet v. Bull, 3 Dallas, 388 (1798). Compare with Locke, "Thirdly, the 
supreme power cannot take from any man any part of his property without his own 
consent. For the preservation of property being the end of government, and that 
for which men enter into society, it necessarily supposes and requires that the 
people should have property, without which they must be supposed to lose that by 
entering into society which was the end for which they entered into it; too gross 
an absurdity for any man to own." Of Civil Government^ Book 2, Sec. 138, p. 

6 Fletcher v. Peck, 6 Cranch, 135 (1810). See also Ogden v. Saunders, 12 
Wheaton, 346 (1827). 


were anxious for the protection of these rights under the new 
government. With a slight shift in emphasis Locke could 
serve as their patron saint as well as that of the Jeffersonians, 
for he had said that "The great and chief end ... of men 
uniting into commonwealths ... is the preservation of their 
property 5 to which in the state of nature there are many 
things wanting." 7 To the Federalists property was "as sacred 
as the laws of God/ 78 and during the period when they con- 
trolled the Supreme Court it was used as an agency for limit- 
ing State action which seemed to threaten rights of private 
property. 9 

The Theory of Jacksoman Democracy 

When Roger B. Taney was appointed to the Supreme Court 
in 1836 the country was in the midst of a democratic revolu- 
tion which found national expression in Jacksonian Democ- 
racy. The suffrage had been widely extended by the States, 
and property qualifications for officeholding had been re- 
moved. As a result the laborers of the East were able to 
make their influence felt more forcefully in political affairs, 
In the West new States were being admitted, and the fron- 
tiersmen, who were both democratic and nationalistic, were 
exerting an important influence on national affairs. 

In the meantime social and industrial developments were 
raising problems which the government could not ignore. 
Lines of transportation had been developed to meet the needs 
of the expanding country. National and State governments 

7 Of Civil Government, Book 2, Sec. 124, p. 180. 

8 The Works of John Adams, edited by C. F. Adams, VI, 9. 

8 E. S. Corwln says, "The leading doctrine of Constitutional Law during the 
first generation of our national history was the doctrine of 'vested rights', under 
warrant of which the courts treated any legislative enactment unduly infringing 
upon property rights without making compensation to the owners, as utterly 
beyond the purview of legislative power, even though not specifically inhibited by 
the letter of the written constitution." National Supremacy, p. 113. By permis- 
sion of Henry Holt and Company, publishers. 


were spending large sums on roads and canals. Railroads 
and steamboats were rapidly replacing stage coaches and 
flatboats. Transportation companies were seeking special 
privileges and profitable monopolies. New inventions were 
revolutionizing methods of production. Production in large 
corporation-owned factories where there was no direct contact 
between owners and workers led to many evils. The labor 
of women and children, long hours and low wages, bad living 
conditions these were some of the evils which had appeared. 
Some of these difficulties were complicated and intensified by 
the increasing flow of immigrants. Out of it all was growing 
a strong labor movement, and since the workers had got the 
right to vote they began to make themselves felt politically. 
An increasing amount of social legislation by the States re- 
flected the democratic trend in politics. 

Under such conditions an individualistic philosophy of 
natural rights was no longer suitable. The government was 
being called on to regulate more and more the business and 
social affairs of men which it had previously left alone. Indi- 
vidualism no longer meant freedom. It seemed rather to 
provide an opportunity for the strong to oppress the weak. 
The common people had the vote and they moved away from 
such a philosophy toward one of increasing social control. In 
the sense that the conception of the state as rather strictly 
limited by natural law was giving way to a conception of a 
state with power to do anything for the social welfare, the 
political theorist may express the change that was taking place 
in the dominant political philosophy of the country by saying 
that Locke was giving way to Rousseau. The change began 
to be reflected in the State courts in the 1820*8. It is notice- 
able in the decisions of the Supreme Court after Taney be- 
came Chief Justice. The Federalist controlled Court had 
limited the social legislation of the State governments, under 


the guise of protecting the constitutional grants of power to 
the national government. Taney's Court allowed more free- 
dom for social legislation. 10 

Jacksonian Democracy produced no great political the- 
orists. Its leaders were men of action rather than of words. 
Among them Taney was one of the most influential and also 
perhaps the best prepared by training and intellectual back- 
ground for the expression of the thought of the period. He 
was himself primarily a man of action rather than a theorist, 
but in his opinions as Chief Justice and in his previous polit- 
ical expressions may be found what is probably the best state- 
ment obtainable of the political theory of the new democracy. 
In his exposition of the law is clearly discernible the swing 
toward a strong state with power to legislate over the whole 
range of human interests where the social welfare seems at 
stake. He finds individual freedom best protected by the 
sovereigryDeoplej^ capacity compose the 

""state! When individual rights are threatened by the govern- 
ment their will, not the will of government officials, is the 

Individual Rights are Not Natural Rights 
Taney's opinion in the Dred Scott case 11 and the supple- 
ment 12 which jhe.wrote to it show that he thought of the state 
as being formed by a social compact, but there is no evidence 
that he believed in natural rights, a belief wHch had accom- 
panied the contract theory in the minds of earlier American 
and English political thinkers. Whenever he refers to indi- 
dividual rights they are rights established by law. In his 

10 This subject will be discussed in more detail in the chapters on the police 
power. See also E. S. Corwin, op. cit., pp. 114-19. 

11 19 Howard, 393 (1856). 

12 As a result of the criticism of his opinion in the Dred Scott case Taney 
wrote a lengthy supplement giving- further proof in support of his opinion. It is 
published in Tyler, op. cit., pp. 578-608. 


supplement to the Dred Scott opinion, speaking of the Amer- 
ican Revolution he said, "It was undertaken to maintain 
ancient and established rights which had been invaded by the 
British Government." 13 Although he was in the midst of a 
discussion of the Declaration of Independence he did not 
refer to those "ancient and established rights" as natural 
rights, rather he said, "The colonists claimed the rights of 
Englishmen, as secured by magna carta and the principles 
upon which the British Government was founded. They did 
nothing more." 14 Even in cases where he seemed to sum- 
mon every resource of logic and evidence at his command, as 
he did in the Dred Scott case in defense of property rights 
and in the Merryman case 15 in defense of individual freedom, 
Taney did not in a single instance appeal to natural rights or 
the law of nature. 

In no instance does Taney refer to a state of nature. His 
viewpoint is essentially that of a practical lawyer and states- 
man rather than of a theorist. The American States and the 
American nation, as he saw it, had been formed by compacts 
among the people who composed them, but they had not 
emerged fresh from a state of nature. They had back of 
them a long tradition of English political institutions. Taney 
was well grounded in the common law, and through this law 
America is connected with the evolutionary continuity of Eng- 
lish political development which seems to have neither be- 
ginning nor end. As a lawyer and jurist he had no need for 
a state of nature in his theory. 

The Social Compact and Popular Sovereignty 

The Dred Scott opinion and its supplement and a few brief 
remarks in other opinions give clues to Taney's belief in the 
compact theory. There is not in any of his opinions anything 

33 Ibid., p. 600. " Ibid. 

15 Ex <parte Merryman, Campbell's Reports, 254 (1861). 


like a full discussion o his views on the subject. He places 
much more emphasis on the idea of popular, sovereignty than 
* lie does on the compact theory, although he associates the two 
together so closely that it is almost impossible to discuss his 
conception of one without also discussing the other. 

In contrasting the American political system with the 
English, Taney pictures the American system as one of pop- 
ular sovereignty and the English system as one where sov- 
ereignty resides in the king, and he points out that the change 
in the location of sovereignty in America was brought about 
by the formation of a new political compact. In this connec- 
tion he says: 

In England the sovereignty resides exclusively in the person 
or individual who is king. All Englishmen are his subjects. And 
the highest peer in the realm ... has no share in the sov- 
ereignty. Their statutes profess to be passed by the King, by and 
with the advice and consent of the Parliament, treating the Par- 
liament as advisers and not as the makers of the law. . . . All 
offences are charged in indictments to be committed "against his 
peace and dignity," and the crime o treason can be committed 
against the King only, and not against the Parliament or people 
of England. 

.But, according to our institutions, the sovereignty does not 
reside in any one individual, but in the whole people, who form 
the political Bo3y called the Stat^JE very t one who is a member of 
thisTsocial compact is a citizen, and a component part of the 

., -- ** * -- "-" * " "~ " " "* ""'"~ . k . , J , , j ,, M , Sr ,.,, f < ' ~**^* t| "* "*"" "" '"'"*' -"*"-" '*" ' 

6 Supplement to the Dred Scott Opinion, Tyler, op. cit. } p. 605. This state- 
ment is similar to Thomas Paine's assertion, "Sovereignty, as a matter of right, 
appertains to the nation only, and not to any individual; and a nation has at all 
times an inherent indefeasible right to abolish any form of Government it finds 
inconvenient, and establish such as accords with its interest, disposition, and hap- 
piness. . . . Every citizen is a member of the Sovereignty, and, as such, can 
acknowledge no personal subjection; and his obedience can be only to the laws." 
Rights of Man, p. 66. It will be noticed however that Paine finds sovereignty in 
the people of the state "as a matter of right," and he is laying down a general 
rule, while Taney, speaking of the United States, declares that sovereignty resides 
in the people "according to our institutions." 


Taney thought of the change which occurred as a result 
of the Revolution as being of fundamental importance. It 
was not comparable to a change in dynasty, for the political 
organization in America had undergone a radical change. 
New states had been formed. "Those who displaced the sov- 
ereignty of the English monarch, and associated themselves 
in a new political body, retaining the sovereignty in their own 
hands, had the power and the right to determine who should, 
and who should not, be admitted as members of this asso- 
ciation, and share equally with themselves the sovereignty 
they had established in their own hands." 17 

Chief Justice Jay had announced a similar doctrine in his 
opinion in Chisholm <v. Georgia^ in 1793. Referring to the 
English system he said: 

That system considers the prince as the sovereign, and the people 
as his subjects; it regards his person as the object of allegiance, 
and excludes the idea of his being on an equal footing with a sub- 
ject, either in a court of justice or elsewhere. ... No such ideas 
obtain here; at the revolution the sovereignty devolved on the 
people; and they are truly the sovereigns of the country, but they 
are sovereigns without subjects, unless the African slaves among 
us may be so called, and have none to govern but themselves; the 
citizens of America are equal as fellow-citizens, and as joint- 
tenants in the sovereignty. 19 

It is interesting to notice the stress which both Taney and 
Jay place on the change in the location of sovereignty brought 
about by the Revolution. They must have known that the 
idea of a sovereign king in England was only a legal fiction. 

17 Supplement to the Dred Scott Opinion, in Tyler, op. cit., p. 606. 

18 2 Dallas, 419. 

19 Ibid., 471-72. Compare with Mr. Justice Baldwin in Rhode Island v. 
Massachusetts y 12 Peters, 720 (1838). "Those states, in their highest sovereign 
capacity, in the convention of the people thereof? on whom, by the revolution, 
the prerogative of the crown, and the transcendent power of parliament devolved, 
in a plenitude unimpaired by any act, and controllable by no authority . . . adopted 
the constitution. . . ." 


Taney perhaps gives evidence of this realization when he says, 
"Their statutes profess to be passed by the King. . . ." The 
fact that he defined the location of sovereignty in England 
as a legal fiction might raise a question as to whether or not 
he thought of popular sovereignty in the United States as 
being also a legal fiction. His utterances in the struggle over 
the recharter of the Bank and on other occasions, which will 
be discussed in later chapters, give evidence that he believed 
in popular sovereignty as a vital reality, something much 
more than a fiction. 

It is noticeable that Taney conceives of the States formed 
at the time of the Revolution as new political associations. 
He thought of the United States as being another political 
body created by the Constitution, and he applied the same 
principles to this national association that he applied to the 
States. He says, "The words, 'people of the United States' 
and 'citizens' are synonymous terms, and mean the same 
thing. They both describe the political body who, according 
to our republican institutions, form the sovereignty, and who 
hold the power and conduct the government through their 
representatives. They are what we familiarly call the 'sov- 
ereign people, 3 and every citizen is one of this people, and a 
constituent member of this sovereignty." 20 

Thus far we have considered Taney's theory of the nature 
of the political associations in the United States almost 
wholly as it is revealed in his opinion in the Dred Scott case 
and its supplement. He does not refer to the States of the 
Union as being formed by political compacts in any of his 
other opinions. He does, however, refer to the national 
Constitution as being a compact between the people of the 
several States. In Ableman v. Booth, after declaring that the 
Constitution was formed by a voluntary act of the people of 
the several States he asserts that it is the duty of a "sovereign 

20 Dred Scott v. Sandford, 19 Howard, 404 (1856). 


state" to observe "the compact into which it voluntarily 
entered when it became a State of this Union." 21 In Ken- 
tucky v. Dennison he refers to the interstate rendition clause 
as a "compact engrafted in the Constitution." 22 

His expressions on popular sovereignty are clearer and 
more frequent. In his dissenting opinion in Luther v. Bor- 
den he said, "No one., we believe, has ever doubted the 
proposition, that, according to the institutions of this country, 
the sovereignty in every State resides in the people of the 
State, and that they may alter and change their form of 
government at their own pleasure." 23 In Fleming et al. v. 
Page he said, "For in this country the sovereignty of the 
United States resides in the people of the several States, and 
they act through their representatives according to the delega- 
tion and distribution of powers contained in the Constitu- 

21 21 Howard, .$25 (1858). 

^24 Howard, 103 (1860). These statements show that Taney thought of 
the Federal Constitution as a compact between the States as political entities and 
binding on them as such. His assertion in Kennett et al. v. Chambers, 14 Howard, 
50, that a citizen is "personally pledged" by a treaty of the government because it 
"is made by the department of government upon which he himself has agreed to 
confer the power. It is his own personal compact as a portion of the sovereignty 
m whose behalf it is made" carries the suggestion that the Constitution is binding 
on individual citizens because made by them. 

These Ideas are suggestive of St. George Tucker's theory that the Constitution 
was a compact between the States as political entitles, and also between the indi- 
vidual citizens of the States. Discussing the Constitution he said, "Here then are 
all the features of an original compact, not only between the body politic of each 
state, but also between the people of those states in their highest sovereign capacity." 
And at another point he said of the Constitution, "It is a compact by which the 
several states and the people thereof, respectively, have bound themselves to each 
other, and to the federal government." Blacks t one's Commentaries, Vol. I, 
Appendix, note D, pp. 151, 169. 

St. George Tucker, professor of law at the College of William and Mary, 
published an edition of Blackstone's Commentaries- in 1803 which, in addition to 
the text of Blackstone, contained "the first legal commentaries on the Federal 
Constitution which appeared in the United States." It had a wide circulation. 
Charles Warren, A History of the American Bar, p. 336. 

Taney's theory is similar to Tucker's at a number of points, but he does not 
agree with him in all particulars. 

23 7 Howard, 47 (1848). 


tion." 24 In another decision he pointed out that the status of 
a county was radically different from that of a State, and 
said of counties, "They form together one political body in 
which the sovereignty resides." 25 

From the discussion thus far it is evident that Taney 
thought of the state where popular government prevails as 
being the result of a compact between the citizens who com- 
pose it. In the United States the compact took the form of a 
constitution which defined the powers of government. In a 
later chapter dealing with the Merryman case we shall see 
that he thought of a valid expression of the sovereign will as 
being a constitutional expression. It was not simply the ap- 
parent will of the majority of the citizens that was sovereign, 
but the will of the corporate body as expressed according to 
the provisions of the constitutional compact. 26 

The Theoretical Background for Taney* s Ideas 

Taney's conception of the composition and power of the state 
seems to be essentially that of Rousseau. Rousseau thought 
of the state as being formed by a social compact in which 
"Each of us puts his person and all his power in common 
under the supreme direction of the general will, and, in our 
corporate capacity, we receive each member as an indivisible 
part of the whole." 27 Those who are associated in the body 
thus formed "take collectively the name of 'people, and 
severally are called citizens, as sharing in the sovereign 
power, and subjects, as being under the laws of the State." 
The Sovereign is "formed wholly of the individuals who 
compose it." 28 

Taney's American background probably had a great deal 

^9 Howard, 617-18 (184.9). 

^Maryland v. 'Baltimore and Ohio R. Co., 3 Howard, 550 (1844). 

20 See Chap. 10. 

27 The Social Contract^ Book I, Chap. 6, p. 15. 

^Ibid.y Book I, Chap. 7, p. 17. 


to do with the development of his ideas. In his own State 
of Maryland the Declaration of Rights which formed part 
of the constitution adopted in 1776 declared "That all gov- 
ernment of right originates from the people, is founded in 
compact only, and instituted solely for the good of the 
whole." 29 His law teacher, Justice Jeremiah Townley Chase 
said in one of his decisions, a The bill of rights and form of 
government ... is a compact made by the people of Mary- 
land among themselves, through the agency of a convention 
selected and appointed for that purpose." And "This com- 
pact is founded on the principle that the people being the 
source of power, all government of right originates from 
them." 30 It is not unnatural that Taney should have ex- 
pressed similar ideas. 

Taney's conception of the two sovereign bodies in the 
United States, and the two compacts seems to have been very 
much like that of Monroe, who wrote in a veto message to 
Congress in 1822, "In the institution of the Government of 
the United States by the citizens of every State a compact 
was formed between the whole American people which has 
the same force, and partakes of all the qualities to the extent 
of its powers as a compact between the citizens of a State in 
the formation of their own constitution. It can not be altered 
except by those who formed it or in the mode prescribed by 
the parties to the compact itself." 81 

The Citizen is Subject As Well As Sovereign 

, In Taney's theory, along with the privileges which accom- 
panied membership in a republic where the people were sov- 
ereign went also a peculiar responsibility of obedience to the 
laws, and acquiescence in the engagements made by the con- 

29 Perley Poore, op. cit. } pt. I, p. 817. 

30 Whittington v. Polk } I Harris and Johnson, 242 (Md.-i8o2). 

31 J. D. Richardson, A. Compilation of the Messages and Papers of the Presi- 
dents, II, 147-48. 


stituted authorities. He thought that free government could 
exist only when the citizens of the republic yielded ready 
obedience to the laws made and administered by their repre- 
seritatiyes^f __ 

In foreign affairs, he pointed out, the citizen is bound to 
accept as obligatory the decisions of the government upon 
subjects involved in the nation's relations with other coun- 
tries. It is a settled rule of international law Jthat .the Citizen 
is at war, with "tEe nation which his government has declared, 
war against and that he shall commit no act of hostility 
against a nation with which his government is at peace. Said 

It is, however more emphatically true in relation to the citizens 
of the United States. For as the sovereignty resides in the people, 
every citizen is a portion of it, and is himself personally bound by 
the laws wEicri the representatives of the sovereignty may pass, or 
the treaties into which they may enter, within the scope of their 
delegated authority. And when that authority has plighted its 
faith to another nation that there shall be peace and friendship 
between the citizens of the two countries, every citizen of the 
United States is equally and personally pledged. The compact is 
made by the department of government upon which he himself 
has agreed to confer the power. It is his own personal compact 
as a portion of the sovereignty in whose behalf it is made. 33 

Taney's views on this subject are perhaps comparable to 
those of Rousseau who refers to the people of the state as 
"citizens, as shaxingJrMtiie^ 

beingjind^ And there is striking 

similarity to Montesquieu's statement that "In a democracy 
the pepple^are^m some respects the^sqyereign, aHrS^btBgrsJ 
the subject." 35 However, Taney emphasizes more the obliga- 

** Ableman "v* Booth, 21 Howard, 525 (1858). 

88 Kennett et al. v. Chambers, 14 Howard, 50 (1852). 

84 The Social Contract, Book I, Chap. 6, p. 16. 

85 The Spirit of the Laws, Book 2, Chap. 2. 


tion of the sovereign and the honor involved in his upholding 
the compact which he has made rather than the aspect of the 
citizen as subject. He did believe though that the citizen 
should be compelled to obey the law if he refused to do so 
voluntarily. He thought that "the safety of the community 
depends upon the vigilant and firm execution of the law; 
every one must be made to understand, and constantly to 
feel, that its supremacy will be steadily enforced by the con- 
stituted tribunals, and that liberty cannot exist under a feeble, 
relaxed or indolent administration of its power. . . ," 36 This 
is something like Rousseau's idea that the social compact 
tacitly includes the engagement "that whoever refuses to 
obey the general will shall be compelled to do so by the 
whole body. This means nothing less than that he will be 
forced to be free. . . ," 37 

The Status of Individuals in the State 

Taney held that the status of individuals living within the 
territory of a state depended upon the sovereign will as ex- 

In a case involving the power of 

a State of the Union he said, "Every state has an undoubted 
right tp,determinfiJ;^ and social condition, 

of the persons domiciled within its territory 5 except in so far 
as the powers of "the states in this respect are restrained, or 
duties and obligations imposed upon them, by the Constitu- 
tion of the United States." 38 In the supplement to the Dred 
Scott opinion, referring to the status of Negroes in the 
United States, he said, "It is purely an American question, 
and depends entirely upon our own institutions, and upon 
the construction and meaning of the constitutions we have 
established." 39 

8e Charge to the grand jury, United States Circuit Court, April Term 1836, 
Campbell's Reports, 616. 

37 'The Social Contract, Book I, Chap. 7, p. 18. 

88 Strader et al. v. Graham y 10 Howard, 94 (1850). 

39 Tyler, op. cit. 3 p. 606. 


All persons residing in the territory of a state were not 
necessarily on the same basis. The citizens were the con- 
trolling group. To Taney the characteristic of citizenship is 
the fact that its possessor is a member of the social compact 
which forms the state, and is "a component part of the sov- 
ereignty." 40 Citizenship is acquired at the will of the cor- 
porate body. Referring to the States formed at the time of 
the American Revolution, in a statement which has already 
been quoted in another connection, he said, "Those who . . . 
associated themselves in a new political body . . . had the 
power and the right to determine who should, and who 
should not, be admitted as members of this association, and 
share equally with themselves the sovereignty they had estab- 
lished and retained in their own hands." 41 

It is noticeable that Taney conceives of the States formed 
at the time of the Revolution as new political associations 
which have the power either to admit new members or to 
keep them out. This idea is applied to the nation in the 
Dred Scott opinion proper. He thought qfjheJ[Inijbed..States^. 
as being a new political body created by the Constitution. 
Citizens were admitted to this body according to the pro-,, 
visions of the Constitution, and the Constitution had con- 
ferred on Congress the power to establish a uniform rule for 
naturalizing aliens. There was no other way by which citizen- 
ship could be acquired. Taney draws his conclusions in a 
paragraph 'distinguishing between the two political associa- 
tions, the State and the nation, and the powers of the sov- 
ereign members of each. 

It is very clear, therefore, that no State can, by; any act or Jaw 
of its own, passecf since the adoption of the constitution, introduce 
a new member into the political community ,creat^ , by the, con- 
stitution of the United States. It cannot make him a member of 
this community by making him a member of its own. And for 
40 ibid., P . 605. " ' "* 7Srf.,V 1 6o6L 


the same reason it cannot introduce any person, or description of 
persons, who were not intended to be embraced in this new 
political family, which the constitution brought into existence, but 
were intended to be excluded from it. 42 

Continuing his discussion of citizenship in the United 
States, Taney says: 

It is true, every person, and every class and description of 
persons, who were at the time of the adoption of the constitution 
recognized as citizens in the several States, became also citizens 
of this new political body; but none other; it was formed by them, 
and^fojhem and their ^gosterity, but no one else.f ... It was, 
the^ union of those ,w t jio, were at that time members of distinct and 
separate communities into one political family, whose power, for 
certain specified purposes, was to extend over the whole territory 
of the United States. 43 

Looking at the American situation Taney conceives of a 
State in the Union as an association of people, with certain 
sovereign powers, which had before the formation of the 
Union, and still has, the power to confer the privileges of 
State citizenship "upon an alien, or any one it thinks proper. 
. . ," 44 The nation is a larger association, composed orig- 
inally of the people who were citizens of the States which 
entered the Union. This larger association has all the powers 
of sovereignty which were given to it by the people of the 
smaller associations, and it has the exclusive right to admit 
new citizens into it, in accordance with the provisions of the 
federal Constitution. 45 

Taney recognized the fact that a person may be a citizen 
without having a right to vote or hold office. This depended 
upon the laws. He says: 

Undoubtedly, a person may be a citizen, that is a member of the 
community who form the sovereignty, although he exercises no 

42 Dred Scott v. Sandford, 19 Howard, 406 (1856). 

48 Ibid., 406. ** MM., 405. Ibid. 


share of the political power, and is incapacitated from holding par- 
ticular offices. Women and minors, who form a part of the 
political family, cannot vote; and when a property qualification is 
required to vote or hold a particular office, those who have not the 
necessary qualification cannot vote or hold office; yet they are 
citizens. 46 

Taney regarded the Negroes in the United States as 
occupjongTBythe will of the sovereign, an inferior position 
in American society. He declares that they were not meant 
by the makers of thjs^^n^tutiph tcfbe Included as jdtizens 
ancljhe_^ays, "On the contrary^ they were at that time con- 
sidered as a subordinate and inferior class of beings 1 who had 
been subjugated by .the dominant race, and, whether eman- 
cipated or not, yet remained subject to their authority, and 
had no Tights oF privileges but such as those who held the 
power and the government might choose to grant them." 47 
And he goes on to say that it is not for the Supreme Court 
to say whether such a policy was either just or wise. "The 
decision of that question belonged to the political or Taw- 
making power 5 to those who formed the sovereignty and 
framed the constitution." 48 

Taney's views on slavery will be discussed more fully in 
a later chapter. It is not necessary to deal with them in detail 
at this point, but simply to call attention to the J^t_that he 
viewed^the status of slaves as a matter to l^. determined- 
altogether by lawsln lcc6Tdance"with the constitution which * 
expressed the will of the corporate sovereign. 

Aliens constituted another group within the territory of 
the nation whose status Taney was several times forced to 
discuss. His views on this subject are in accordance with the 
settled principles of international law. He held that the 
sovereign could expel undesirable aliens or prevent them 
49 md., 422. 4T IK*., 404. * ibid., 404-5 . 


from entering. 49 As to property rights of aliens, he said in 
Mager v. Grima et aL, "Every state or nation may unques- 
tionably refuse to allow an alien to take either real or personal 
property, situated within its limits, either as heir or legatee, 
and may, if it thinks proper, direct that property so descending 
or bequeathed shall belong to the state." 50 

In Taney's system whether the individual is a citizen, 
slave, or alien, his status and his rights depend upon the law 
which is an expression of the sovereign will. There is no 
natural right to citizenship, to freedom or to equality. There 
is no natural right to hold property. The corporate will of 
the sovereign is the final authority. 

40 Holmes v. Jennison, 14 Peters, 568-69 (184.0) j Dissenting opinion in 
Passenger Cases f 7 Howard, 466-67 (1849). 

50 8 Howard, 493-94 (1849). See also Prevost v. Greneaux, 19 HoWard, I 



The Nature of Sovereignty 

WE CANNOT presume to get an adequate conception of 
Taney's theory of the nature of sovereignty from any isolated 
expressions on the subject which may be found in his opinions. 
Rather, his theory must be distilled from a great many of his 
expressions and from the general lines of thought that run 
through all of his judicial decisions. However, some of his 
concise statements on the subject are particularly helpful 
because they are pointed indications of what his theory was. 

The term "sovereignty" is a rather difficult one to deal 
with because it has been used to represent a wide variety of 
conceptions. Some of the earlier writers on the subject de- 
veloped the idea of a powerful sovereign within the state but, 
thinking of the sovereign as an individual, or at most a com- 
paratively small body of individuals, were not willing to give 
it quite the omnipotent power which they thought should 
reside somewhere within the state. 1 Others paid less atten- 
tion to sovereignty and gave more thought to individual 
rights, apparently finding omnipotent sovereignty and indi- 
vidual liberty incompatible. 2 It remained for Rousseau to 
attempt the reconciliation of the two. 

Rousseau thought of the state as "a moral person whose 
life is in the union of its members" which must have a com- 
pelling force "in order to move and dispose each part as may 

1 This is true of Hobbes and Bodin. See Thomas Hobbes, Leviathan, pt. 2, 
Chaps. 20, 21$ also W. A. Dunning, A History of Political Theories from Luther 
to Montesquieu, pp. 96-103. 

2 This is especially evident in Locke. See Of Civil Government, Book 2, Chap. 
ii, pp. 184-85, 187. See also Montesquieu, The Spirit of Latvs, Book 5, Chap. 
7, pp. 34-36; Book 2, Chap. 6, pp. 112-20. 



be most advantageous to the whole." And he said, "As na- 
ture gives each man absolute power over all his members, the 
social compact gives the body politic absolute power over all 
its members also 5 and it is this power which, under the direc- 
tion of the general will, bears as I have said, the name of 
Sovereignty." 3 This seems to be essentially the theory of 
sovereignty that Taney held. 

In his decision in the case of O Mo Life Insurance and Trust 
Co. v. D&bolt Taney said, "It will be admitted on all hands, 
that with the exception of the powers surrendered by the 
Constitution of the United States, the people of the several 
States are absolutely and unconditionally sovereign within 
their respective territories." 4 He called attention to the fact 
that this power might be used unwisely, saying: 

There are, undoubtedly, fixed and immutable principles of 
justice, sound policy, and public duty, which no State can disregard 
without serious injury to the community, and to the individual 
citizens who compose it. And contracts are sometimes incautiously 
made by States . . . and franchises, immunities, and exemptions 
from public burdens improvidently granted. But whether such 
contracts should be made or not, is exclusively for the consideration 
of the State. . . . For it can never be maintained in any tribunal 
in this country, that the people of a State, in the exercise of the 
powers of sovereignty, can be restrained within narrower limits 
than those fixed by the Constitution of the United States, upon the 
ground that they may make contracts ruinous or injurious to them- 
selves. The principle that they are the best judges of what is for 
their own interest, is the foundation of our political institutions. 5 

3 The Social Contract, Book 2, Chap. 4, pp. 26-27. 

* 1 6 Howard, 428 (1853). Taney's conception of the sovereignty of the state 
is best revealed in his discussions of the powers of the States of the United States. 
The federal government was created for specific purposes and its power confined 
within relatively narrow boundaries by the Constitution. It is in the States that he 
finds the residue of sovereignty to which he sets no limits save those of the Consti- 

5 Ibid., 428-29. 


TjSCognixes that principles .of reason and justice will 
limit the exercise of the state's power, but the limitations, wilL 
be iinposed^y the state Jtself^and, not by any power outside, 
itself. Rousseau must have had a similar conception of the 
sovereign as being limited only by itself, for he said, "Each 
man alienates, I admit, by the social compact, only such part 
of his powers, goods and liberty as it is important for the 
community to control 5 but it must also be granted that the 
Sovereign is sole judge of what is important." 6 

Taney's Application of his Theory of Sovereignty 

In spite of the unqualified way in which Taney speaks of 
sovereignty we cannot be sure of his actual conception of the 
power of the state without looking beyond his words to his 
judicial decisions. Bodin defined sovereignty as "supreme 
power over citizens and subjects, unrestrained by the laws," 
and then went on to say that there were certain laws which 
did restrain the sovereign. 7 Blackstone in his Commentaries 
on the Laws of England speaks of the sovereign power as 
being "a supreme irresistible, absolute, uncontrolled author- 
ity," 8 and then a little later he devotes a chapter to the "abso- 
lute rights of individuals," 9 defining the absolute rights of 
individuals as those which "would belong to their persons 
merely in a state of nature, and which every man is entitled 
to enjoy, whether out of society or in it." 10 Thus it is evident 
that men who talk about "supreme power" do not always do 
so without important reservations in mind. 

6 The Social Contract, Book 2, Chap. 4, p. 27. 

7 "Maiestas est summa in cives ac subditos legibusque soluta potestas. . . ." 
De Republica, Book I, Chap. 8, p. 123. Bodin says the people can confer 
sovereignty on a ruler, but the ruler is limited by certain laws. See ibid., pp. 


8 Commentaries on the Laws of England (ijth ed.) Introduction, Section 2, 

pp. 48-49. 

9 Chap. i. 

10 Book i, Chap. I, p. 123. 


The only instance in which Taney places any limitation, 
other than constitutional, on the power of the state is in an 
opinion where he declares that "a neutral power is not at 
liberty to decide according to her own convenience, whether 
she will perform her obligations or not 5 she is bound to per- 
form them, and if she fails to do so, she becomes herself 
responsible for the injury which she ought to have pre- 
vented." 11 This would indicate that the state was bound by 
international law in its international relations. That his the- 
ory of the obligations of international law was not incom- 
patible with his theory of sovereignty may be gathered from 
his decision in Kentucky v. Denmson^ 2 a case involving two 
States of the American Union. In this decision he referred 
to the interstate rendition clause of the Constitution as a com- 
pact between the States which implied an "absolute right" 
on the part of one State and a "correlative obligation" on the 
part of the other, 13 but the obligation is finally defined as 
"the moral duty which this compact created." 14 He con- 
cludes that there is nothing which the Court can do to compel 
compliance with the compact. "The performance of this 
duty ... is left to depend on the fidelity of the State exec- 
utive to the compact entered into with the other States when 
it ... became a member of the Union." 15 Applying this 
principle to international relations, it would seem that if a 
sovereign state refused to meet its obligations nothing could 
be done about it, unless there was a resort to war. The obli- 
gation of international law would seem to be a moral one. 
The sovereign could use its judgment about compliance. 

Taney thought of the allocation of sovereignty as being 
beyond the province of the courts of law. In his dissenting 
opinion in the case of Rhode Island v. Massachusetts he said 

11 Ardrey v. Karthaus, Campbell's Reports, 383 (1836). 
^24 Howard, 66 (1860). 13 Ibid., 103. 

14 #^107. lbid., 109. 


"Sovereignty and jurisdiction are not matters of property 5 
for the allegiance in the disputed territory cannot be a matter 
of property. Rhode Island, therefore, sues for political 
rights. . . . Contests for rights of sovereignty and jurisdic- 
tion between states over any particular territory, are not, in 
my judgment, the subjects of judicial cognisance and control, 
to be recovered and enforced in an ordinary suit; and are, 
therefore, not within the grant of judicial power contained in 
the constitution." 16 He said this in spite of the fact that 
the Constitution of the United States provides that "The 
judicial Power shall extend ... to Controversies between 
two or more States. . . ," 17 

By saying that sovereignty is a political matter and not 
justiciable" he evidently means that an expression of the spy- 
^erejgn wil[ js necessary to subtract from the territorial limits 
of sovereignty. The courts cannot do it by a legal decision. 
Sovereignty is inherent in the people and can be limited only 
by themselves or by their political agents who may be given 
specific power to make agreements binding the state. 

We have already discussed Taney's theory in regard to 
the power of the sovereign state to determine the status of 
individuals within its territorial limits. In future chapters 
vre shall consider his views on the power of the sovereign as 
applied in the United States in connection with the police 
power and slavery and the fundamental rights of individuals. 
At this point we may throw some additional light on his 
theory of the sovereign power by considering his views on 
the taxing power, and on the obligations of the sovereign. 

In one of his decisions, after declaring that the States of 
the Union are "absolutely and unconditionally sovereign" 
except as they are limited by the Constitution, Taney says, 
"It follows that they may impose what taxes they think 
proper upon persons or things within their dominion, and 

16 ;? Peters, 753 (1838). "Article 3, Sec. 2. 


may apportion them according to their discretion and judg- 
ment. They may, if they deem it advisable to do so, exempt 
certain descriptions of property from taxation, and lay the 
burden of supporting the government elsewhere." 18 

In the case of Mager v. Grima et al., involving an in- 
heritance tax on property left to aliens, Taney said, "Now the 
law in question is nothing more than an exercise of the power 
which every state and sovereignty possesses, of regulating the 
manner and term upon which property, real or personal 
within its dominion may be transmitted by last will and 
testament, or by inheritance j and of prescribing who shall and 
who shall not be capable of taEnglf l wi ^ ~&nctj" "We can see 
no objection to such a tax, whether imposed on citizens and 
aliens alike, or upon the latter exclusively." 20 

English speaking peoples have always regarded the tax- 
ing .power as one of the powers of government which it was 
most important to keep under popular control. In the ex- 
pressions just quoted Taney applies to it his "theory of the 
supreme power of the state, setting no limits, except constitu- 
tional ones, to the power of the state to levy taxes. r ,This 
statement in the inheritance tax case indicates that he believed 
that the state could do away with inheritances all together 
and itself take the property of deceased persons if it saw fit to 

It is a settled rule of public law that a sovereign state 
cannot be sued without its own consent. Taney applied and 
interpreted this rule in a number of his judicial decisions. In 
Beers v. State of Arkansas he said: 

It is an established principle of jurisprudence in all civilized 
nations that the sovereign cannot be sued in its own courts, or in 
any other, without its consent and permission; but it may, if it 

u Ohio Life Insurance and Trust Co. v. Debolt, 1 6 Howard, 428 (1853). 

19 8 Howard, 493 (1849). 

20 Ibid. 9 494. See also Prevost v. Greneaux > 19 Howard, 7 (1856). 


thinks proper, waive this privilege, and permit itself to be made a 
defendant in a suit by individuals, or by another State. And this 
permission is altogether voluntary on the part of the sovereignty, 
it follows that it may prescribe the terms and conditions on which 
it consents to be sued, and the manner in which the suit shall be 
conducted, and may withdraw its consent whenever it may sup- 
pose that justice to the public requires it. 21 

In another opinion he said: 

Those who deal in the bonds and obligations of a sovereign State 
are aware that they must rely altogether on the sense of justice 
and good faith of the State; and that the judiciary of the State 
cannot interfere to enforce these contracts without the consent of 
the State. . . , 22 

Taney recognized a moral obligation on the state to see 
that justice was done. In a case involving a claim of the 
Bank of the United States, referring to a statute which the 
Bank claimed applied to the government as well as to indi- 
viduals, Taney said: 

If such be the construction of this law ... it is the first in- 
stance in the history of nations in which a sovereignty has imposed 
a penalty upon itself, in order to compel it to be honest in its deal- 
ings with individuals. A sovereignty is always presumed to act 
upon principles of justice, and if, from mistake or oversight, it does 
injury to a nation or an individual, it is always supposed to be ready 
and willing to repair it. 23 

These opinions show that Taney thought of the sovereign 
as being above the laws which were made for individuals. 
But the sovereign was presumed to be willing to do justice 
without compulsion. Taney's conception of the obligation of 
justice which accompanies sovereignty has already been 

31 20 Howard, 529 (1857). 

22 Bank of Washington et al. v. State of Arkansas et al. } 2O Howard, 532 

23 Sank of the United States v. The United States, 2 Howard (Appendix), 
759-60 (1844). 


noticed in connection with the discussion of the sovereignty of 
the people. 24 He thought that because the citizen was 
sovereign he was bound to obey the law in a sense in which 
he would not be bound were he not a possessor of sov- 
ereignty. 25 The last statement quoted in the paragraph above 
implies that he thought of the state as a whole as being bound 
by the sense of honor which must accompany sovereignty. 

The Government as the Agent of the Sovereign 

Taney makes a sharp distinction between the sovereign and 
the government. He regards the government as being simply 
the agent of the sovereign and having only as much power 
asjhe sovereign has seen fit to bestow uponjt. In the Dred 
Scott opinion, referring to the acquisition of territory by the 
United States, he said "it was acquired by the general gov- 
ernment, as the representative and trustee of the people of 
the United States and it must therefore be held in that char- 
acter for their common and equal benefit. . . ," 26 

In another opinion he discusses the power which may be 
conferred on the government, saying "It is equally clear . . . 
that the people of a State may, by the form of government 
they adopt, confer on their public servants and representatives 
all the powers and rights of sovereignty which they them- 
selves possess ; or may restrict them within such limits as may 
be deemed best and safest for the public interest." 27 And 
he goes on to explain that "The powers of sovereignty con- 
fided to the legislative body of a State are undoubtedly a 
trust committed to them, to be executed to the best of their 
judgment for the public good. . . ," 28 

Taney's idea is similar to that expressed by Alexander 

2 *In Chap. 2. 

25 ' Kennett et al. v. Chambers, 14 Howard, 50 (1852). 

20 Dred Scoff v. Sandford, 19 Howard, 448 (1856). 

27 Ohio Life Insurance and Trust Co. v. Debolt, 16 Howard, 429 (1853). 

28 Ibid., 431. 


Hamilton when he wrote in The Federalist that the national 
and State governments of the United States were the "agents 
and trustees of the People." 29 In regard to American gov- 
ernment Taney would agree with Rousseau's doctrine that 
governmental power existed subject to the will of the sov- 
~ereign, as expressed in the statement, "This power Jt_ can 
limit^modify or recover at pleasure j for the alienation of such 
a right is incompatible with the nature of the social body, aaci 
contrary to the end of the association." 30 Taney's words are, 
"No one, we believe, has ever doubted the proposition that, 
according to the institutions of this country, the sovereignty 
in every State resides in the people of the State, and that 
they may alter and change their form of government at their 
own pleasure." 31 

There is perhaps a difference between Taney and Rous- 
seau at this point in that Rousseau implies that there never 
could be established a commission of government which could 
not be modified or withdrawn by the sovereign at will, while 
Taney finds the right of the sovereign people to change the 
form of government at their will in "the institutions of this 
country." By this expression he probably meant the consti- 
tutions of this country. This is a distinction which may be 
observed at different points in Taney's theory. Whereas 
Rousseau speaks in general terms of broad powers and neg- 
atives, Taney enunciates principles of government with the 
constitutions of the United States in mind. He is a consti- 
tutional lawyer who finds in the Constitution the supreme 
law of the land. 

Because he thinks of government as a trust which is to be 
exercised for the good of the people, Taney holds that one 
legislature cannot limit the power of its successors, unless it 

29 Number 45, The Foederalist, edited by H. B. Dawson, p. 325. 

80 The Social Contract, Book 3, Chap. I, p. 50. 

81 Luther v. Borden, 7 Howard, 47 (1848), 


has been given specific authority to do so by the constitution 
which created it. As a member of the Supreme Court he 
consistently applied this rule. In his decision in Ohio Life 
Insurance and Trust Co. v. Debolt, after saying that the 
powers of sovereignty confided to the legislature are a trust 
from the people he adds, "and no one legislature can, by its 
own act, disarm their successors of any of the powers or rights 
of sovereignty confided by the people to the legislative body, 
unless they are authorized to do so by the constitution under 
which they are elected." 32 On another occasion, in a case in- 
volving the powers of the government of the United States 
he said, "Yet it may perhaps be doubted whether Congress 
could by law confer on an individual, or individuals, a right 
which would in any degree impair the constitutional powers 
of the legislative or executive departments of the Govern- 
ment. . . ." 33 That he did not believe that even the "neces- 
sary and proper" clause in the Constitution of the United 
States authorized such a surrender of power is indicated by 
the statement which he wrote into Jackson's Bank veto mes- 
sage, 34 "It can not be 'necessary* or proper* for Congress to 
barter away or divest themselves of any of the powers vested 
in them by the Constitution to be exercised for the public 
good." 35 

Since Taney's time, the doctrine that the government can- 
not divest itself of its important powers of legislating for the 
general welfare has been written into American constitutional 
law in the rule, now well established, that the State govern- 
ments cannot barter away the police power. 36 In language 

82 16 Howard, 431 (1853). 

33 Brown v. Duchesne, 19 Howard, 198 (1856). 

34 Taney says in his account of the Bank struggle, which is now in the Library 
of Congress in manuscript form, that he and Donelson wrote most of the veto 
message. See also Correspondence of Andrew Jackson, IV, 458, note. 

85 Bank veto message, July 10, 1832 Richardson, op. cit., II, 583-84. 

86 Apparently the first definite move toward the establishment of this rule by 
the Supreme Court is the statement of Mr. Justice Field in the decision of Boyd v. 


which reveals a conception of government essentially like 
Taney's, Chief Justice Waite said in the decision of Stone v. 

No legislature can bargain away the public health or the public 
morals. The people themselves cannot do it, much less their 
servants. . . . But the power of governing is a trust committed 
by the people to the government, no part of which can be granted 
away. . . . The contracts which the Constitution protects are 
those that relate to property rights, not governmental. 37 

How the Sovereign Will is Expressed 

i. The Constitution In a state where the people are the 
sovereign there may be some question as to how the sovereign 
will is expressed. Locke^aad Rousseau^assume.that at some 
time there was an original compact made by unanimous con- 
sent, and that after that a majority may be allowed to bind 
the whole. 38 Taney, dealing with a state which he knew had 

Alabama, 94 U. S. 650 (1876): "We are not prepared to admit that it is com- 
petent for one legislature, by any contract with an individual, to restrain the power 
of a subsequent legislature to legislate for the public welfare, and to that end to 
suppress any and all practices tending to corrupt the public morals." Although 
this statement was obiter dictum it was later cited in support of decisions where the 
Court definitely applied the rule. The rule was applied the following year in Beer 
Company v. Massachusetts, 97 U. S. 33 (1877). 

^lOl U. S. 819-20 (1879). It should be noted perhaps that Taney never did 
say that the people did not have the power to bargain away the "public health or 
the public morals." He did however construe the police power very generously, 
as we shall see in the chapter dealing with that subject. In the License- Cases, 5 
Howard, 576-77, In connection with a discussion of the relation of the commerce 
power as limiting the police power of the States, he said, "But it must be remem- 
bered that disease, pestilence, and pauperism are not subjects of commerce, although 
sometimes among attendant evils. They are not things to be regulated and 
trafficked in, but to be prevented, as far as human foresight or human means can 
guard against them." He always construed the charters of corporations so strictly 
that he left the power of government to legislate for the general welfare unim- 
paired. See Charles River Bridge v. Warren Bridge, II Peters, 420 (1837)5 
Perrine v. Chesapeake and Delaware Canal Co., 9 Howard, 172 (1850); Ohio 
Life Insurance and Trust Co. v. Debolt, 1 6 Howard, 416 (1853). 

88 Locke says, "For, when any number of men have, by the consent of every 
individual, made a community, they have thereby made that community one body, 
with a power to act as one body, which is only by the will and determination of the 


not been established by the unanimous consent of those who 
composed it, never says anything about a hypothetical com- 
pact of the past which authorizes a fraction of the people to 
bind the whole. Speaking of the Federal Constitution which, 
as we have already noticed, he regarded as the compact which 
created the sovereign body known as the United States, he 

The Constitution was, in the language of the Ordinance, "adopted 
by common consent," and the people of the territories must neces- 
sarily be regarded as parties to it, and bound by it, and entitled to 
its benefits, as well as the people of the then existing states. It be- 
came the supreme law throughout the United States. 39 

In these statements he assumes that the sovereign power 
was organized and the sovereign will expressed by a compact 
which was "adopted by common consent," although it was 
not unanimous consent. He regards the Constitution as the 
supreme law, binding the people in the Territory of the 
United States as well as the people in the States, even though 
the people in the Territory had not been given an opportunity 
to vote for or against its ratification. 

Taney regarded the will of the sovereign as a matter to 
be determined through the forms of law. In questions which 
concerned merely the constitution and laws of the States of 
the Union, which he regarded as sovereign bodies, he applied 
the rule that the Supreme Court would accept the interpreta- 
tion of the State courts as authoritative. 40 This implies that 
the will of the sovereign is to be determined by its own law 
interpreting body. 

majority." Of Civil Government, Book 2, Chap. 8, pp. 164-65. Rousseau says, 
"The law of majority voting is itself something established by convention, and 
presupposes unanimity, on one occasion at least." The Social Contract^ Book I, 
Chap. 5, p. 14. 

39 Strader et al. v. Graham, 10 Howard, 96 (1850). 

* McBride v. Hoey, n Peters, 172 (1837); Holmes v. Jennison, 14 Peters, 
562 (1840); Luther v. Borden, 7 Howard, 40 (1848); Nesmith et al. v. Sheldon 
et al. } 7 Howard, 818 (1848). 


In the case of Luther v. Borden et al.^ which arose as a 
result of the Dorr Rebellion in Rhode Island, the Supreme 
Court was asked to decide which of two governments in 
Rhode Island was the authoritative one. In his decision of 
the case Taney said, "Moreover, the Constitution of the 
United States, as far as it has provided for an emergency of 
this kind, and authorized the general government to interfere 
in the domestic concerns of a State, has treated the subject as 
political in its nature and placed the power in the hands of 
that department." And he goes on to say, "Under . . . the 
Constitution it rests with Congress to decide what government 
is the established one in a State. . V TAndits decision is, bind- 
ing on every other department, and could not be .questioned 
in a judicial tribunal." 42 It will be noticed that he does not 
look into the facts to see which government represented the 
will of the sovereign people. He leaves the matter of decid- 
ing which is the legitimate government to the political de- 
partments and accepts their judgment as final. This, he 
thinks is the method prescribed by the Constitution. 

Taney again recognizes the principle that the sovereign 
will can be expressed only according to the provisions of the 
constitutional compact when he says in Ableman v. Booth 
that the people of all the States are solemnly pledged "to 
support the constitution as it is, in all its provisions, until they 
shall be altered in the manner which the constitution itself 
prescribes." 43 In his opinion in the case of John Merryman 44 
he denied the right of the president to act outside his consti- 
tutional grant of powers, even though an emergency existed. 
Even though the existence of the state itself might be in 
danger the only expression of the sovereign will which he 

^7 Howard, I (1849). 

43 Ibid.) 42. See also Kennett el al. v. Chambers, 14 Howard, 50-51 (1852). 

43 21 Howard, 525 (1858). 

** Ex parte Merryman, Campbell's Reports, 254 (1861). 


recognized as authentic was the constitutional expression. In 
this opinion he said: 

Nor can any argument be drawn from the nature of sov- 
ereignty, or the necessity of government, for self-defence in times 
of tumult and danger. The government of the United States is 
one of delegated and limited powers; it derives its existence and 
authority altogether from the constitution, and neither of its 
branches, executive, legislative or judicial, can exercise any of the 
powers of government beyond those specified and granted; for 
the tenth article of the amendments to the constitution, in express 
terms, provides that "the powers not delegated to the United 
States by the constitution, nor prohibited by it to the states, are 
reserved to the states, respectively, or to the people." 45 

In several of his decisions involving acts of legislation 
Taney reiterated the principle that the Constitution is the 
supreme law of the land and hence superior to the will of 
the legislature. In the License Cases he said, "The constitu- 
tion of the United States declares that the constitution, and 
the laws of the United States which shall be made in pur- 
suance thereof . . . shall be the supreme law of the land. 
It follows that a law of Congress regulating commerce with 
foreign nations, or among the several States, is the supreme 
law; and if the law of a State is in conflict with it, the law of 
Congress must prevail, and the State law cease to operate so 
far as it is repugnant to the law of the United States." 46 And 
in another decision he said, "And as the constitution is the 
fundamental and supreme law, .if it appears that an act of 
congress is not pursuant to and within the limits of the power 
45 ibid., 260-61. " 

^5 Howard, 573-74 (1846). Compare with John Marshall's statement in 
Cohens v. The Sfate of Virginia, 6 Wheaton, 414 (1821): "America has chosen to 
be, in many respects, and to many purposes, a nation; and for all these purposes, 
her government is complete; to all these objects, it is competent. The people have 
declared, that in the exercise of all powers given for these objects, it is supreme. 
. . . The constitution and laws of a State, so far as they are repugnant to the 
constitution and laws of the United States, are absolutely void." 


assigned to the federal government, it is the duty o the 
courts of the United States to declare it unconstitutional and 

The idea that the Constitution represented the will of the 
sovereign people more directly than it did an act of the 
legislature and hence could not be repealed or modified by 
the legislature, but must be upheld by the courts, is a 
peculiarly American doctrine. 48 Madison expressed the idea 
in the constitutional convention, saying "A law violating a 
constitution established by the people themselves, would be 
considered by the Judges as null & void." 49 The theory was 
expounded in the Federalist?* and later applied by Chief 
Justice Marshall in the celebrated case of Marbury *u. Madi- 
son. 51 The underlying principle was, as Mr. Justice Pater- 
son aptly put it, "The Constitution is the work or will of the 
people themselves, in their original, sovereign, and unlimited 
capacity. Law is the work or will of the legislature in their 
derivative and subordinate capacity. The one is the work of 
the Creator, and the other of the creature." 52 This was an 
essential part of Taney's theory. The will of the sovereign 

47 Ableman v. Booth, 21 Howard, 520 (1858). 

48 "The principle that statutory law, in order to be recognized as valid by the 
courts, must, in all cases, be In conformity with constitutional requirements, is a 
product of American law, and though now found in the jurisprudential systems of 
some other countries, has nowhere received the development and extended applica- 
tion that it has received in the United States." W. W. Willoughby, The Consti- 
tutional Law of the United States, 2d ed., I, I. By permission of Baker, Voorhis 
& Co., publishers. 

*July 23. Max Farrand, The Records of the Federal Convention of 1787, 
II, 93- 

50 No. 78 (Hamilton). At the beginning of his argument in favor of judicial 
review of legislation Hamilton says, "There is no position which depends on 
clearer principles, than that every act of a delegated authority, contrary to the 
tenor of the commission under which it is exercised, is void. No Legislative act, 
therefore, contrary to the Constitution, can be valid. To deny this, would be to 
affirm, that the deputy is greater than his principal j that the servant is above his 
master j . . ." The Foederalist > p. 541. See also pp. 542-43. 

51 1 Cranch, 137 (1803). 

^Vanhorne's Lessee v. Dorrance } z Dallas, 308 (1795), 


people was the supreme law. The acts of their agents were 
binding only when in harmony with that will as expressed 
in the Constitution. 

2. The Interpretation of the CcJ^^V^o^-^Belieying. as_he 
did that the Constitution was the ultimate expression of the 
sovereign will, Taney held that it should be interpreted as 
it was written. Referring to "those who formed the sov- 
ereignty and framed the constitution" Taney said, "TThe duty 
.of the court is, to interpret Jhe instrument Jthejr ^ a X5 f^P 1 ?^. 
with the best lights we can obtain on the subject, and to ad- 
minister it as we find it, according to its true intent andT mean- 
ing when it was adopted?' 5 ^ As long as "there is no alteration 
or change in the Constitution," he held "It is still in full 
force according^ to its original meaning." 54 He thought that 
the courts could not be influenced by the acts of the legisla- 
ture, when they were interpreting the Constitution. In a case 
involving an unconstitutional law he said, "The act of no 
future legislature can alter the meaning of the words used in 
the Constitution j they remain the same, and must always be 
construed and administered in courts of justice, according to 
their legal import, as they stand in that instrument, whether 
future legislatures do or do not obey its mandates, and pass 
laws to enforce its provisions." 55 

Taney's theory that the Constitution must be interpreted 
as written, regardless of changing conditions seems, and per- 
haps is, conservative. However, it follows naturally from his 
conception of the sovereignty of the people and the supremacy 
of the 'Constitution which they have established. If Jthe court 
is to act only as the agent of the sovereign it cannot modify 
the written expression of the sovereign will. The presurrip- 

63 Dred Scoff v. Sandford, 19 Howard, 405 (1856). 

64 Supplement to the Dred Scott Opinion, in Tyler, op. cit., p. 602. 

65 Dill v. Elliott, Campbell's Reports, 239-40 (1854). 


tion is that the sovereign people would themselves change 
the Constitution if they wanted it changed. 

In determining the meaning of the constitutional pro- 
visions, Taney thought that the interpretation of the men who 
wrote the Constitution was entitled to great respect. In one 
of his decisions he said: 

Independently, however, of any judicial authority, the con- 
clusions of my own mind must have been very clear and free from 
doubt, before I should have felt myself justified in pronouncing an 
act of congress passed in 1789 a violation of the constitution. It 
was the first congress that met under the constitution, and in it 
were many men who had taken a prominent and leading part in 
framing and supporting that instrument, and who certainly well 
understood the meaning of the words they used. 56 

He believed too that the words of the Constitution should 
be carefully examined, and that "no word was unnecessarily 
used, or needlessly added." In the Constitution of the 
United States, he said "Every word appears to have been 
weighed with the utmost deliberation, and its force and effect 
to have been fully understood." 57 

Although Taney was careful to ascertain the meaning of 
the Constitution as written he did not construe it so strictly 
as to interfere with its effective operation as a framework of 
government. As Attorney General he expressed the opinion 
that "The constitution was formed for practical purposes, and 
a construction that defeats the very object of the grant of 

56 Gittmgs v. Crawjord, Campbell's Reports, 7 (1838). John Marshall also 
attached great weight to contemporaneous exposition of the Constitution. In 
Cohens v. Virginia, 6 Wheaton, 418 (1821) he said "Great weight has always 
been attached and very rightly attached, to contemporaneous exposition. . . . The 
opinion of the Federalist has always been considered as of great authority. . . 
Its intrinsic merit entitles it to this high rank; and the part two of its authors 
performed in framing the constitution, put it very much In their power to explain 
the views with which it was framed." 

^Holmes v. Jennhon, 14 Peters, 571 (1840). For an application of this rule 
see Dred Scott v. Sandford, 19 Howard, 442 (1856). 


power cannot be a true one." 58 And in one of his decisions 
he said, "The constitution looked to the essence and substance 
of things, and not to mere form." 59 That he did not construe 
the Constitution narrowly is perhaps best indicated by the 
facts that during his twenty-eight years as a member of the 
Supreme Court he held only one act of Congress unconstitu- 
tional, 60 and was noticeably generous in upholding the power 
of the State legislatures to enact measures for the general 
welfare. 61 

3. The Interpretation of the Law Taney regarded as bind- 
ing, the laws which. were passed by ""the representatives of 
the sovereignty . . . within the scope of their delegated 
authority." 62 Blackstone, regarding the King, Lords, and 
Commons as sovereign in England, defines municipal law as 
"a rule of civil conduct prescribed by the supreme power In a 
state." Taney, regarding the people as sovereign in the 
United States holds the legislative acts of their agents to be 
binding so long as they act within the authority given them 
by the sovereign. 

Speaking for the Supreme Court he said, "It is our duty 
to expoun^ and execute the Jaw as we find, it. . .*7 55i "~The 
justice or injustice of a law was not a matter for the courts to 
look into. They must accept the will of the political branches 
of the government as final on that score. 65 The courts must 

58 To the President, July 19, 1832, Official Opinions of the Attorneys General, 
II (1825-1835), 527. 

58 Holmes v. Jennison, 14 Peters, 573 (1840). 
The Missouri Compromise in Dred Scott, v, Sandford, 19 Howard 393 

61 See Chap. 7. 

62 Kennett et al. v. Chamber s y 14 Howard, 50 (1852). 

63 Commentaries on the Laws of England, I3th ed., Introduction, Sec. 2, p. 46. 

64 The United States v. Rogers, 4 Howard, 572 (1854). 

00 "It would be useless at this day to inquire whether the principle thus adopted 
is just or not or to speak of the manner in which the power claimed was in many 
instances exercised . . . were the right and the propriety of exercising- this power 
now open to question, yet it is a question for the law-making and political depart- 
ment of the government, and not for the judicial." Ibid., 572. 


also accept the judgment of the legislature as to the need for 
legislation. In one of his opinions he said, "If, therefore, 
there be an evil, it may easily be corrected by the legislative 
authority of the general government. But if Congress have 
not thought proper ... to exercise this power, and public 
mischief has arisen ... it does not follow that the judicial 
power of the United States may step in and supply what the 
legislative authority has omitted to perform." 66 He thus 
places the responsibility for lawmaking squarely upon those 
"who have Been intrusted with that function by the Constitu- 

In applying the law, Taney held that the courts should , 
look to the intention of the lawmakers. In one of his de- 
cisions, after "explaining that it was a settled rule of the 
Court to construe penal statutes rather strictly, he said, "Yet 
the evident intention of the legislature ought not to be de- 
feated by a forced and overstrict construction." 67 On another 
occasion he said: 

It is, undoubtedly, j the duty of the court to ascertain the mean- 
ing of the legislature| from the words used* in the statute, and the 
subject matter to which it relates; and to restrain 'its' operation 
within narrower limits than its words import, if the court are satis- 
fied that the literal meaning of its language would extend to cases 
which the legislature never ctesigned to embrace in it. 6 ^ 

These principles of construction were well established in 
English law. Blackstone said in his Commentaries, "The 
fairest and most rational method to interpret the will of the 
legislator, is by exploring his intentions at the time when the 

Pennsylvania v. Wheeling Bridge Co. et aL, 13 Howard, 581 (1851). Dis- 
senting opinion. 

07 United States v, Morris, 14 Peters, 464 (1840). 

68 Brewer v. Blougher, !4*Peters, 198 (1840). Compare with Blackstone, "As 
to the effects and consequence^ the rule Is, that where words bear either none, or a 
very absurd signification, if literally understood, we must a little deviate from the 
received sense of them." Commentaries on the Laws of England, I3th ed., Intro- 
duction, Sec. 2, p. 6l. 


law was made, by signs the most natural and probable." 69 
* Taney followed this rule in interpreting both statutes and 
constitutional provisions. 70 

Taney was keenly alive to the importance of the courts in 
interpreting the. law r but he never forgot lhat jt" was tHe will 
of the sovereign and not the will of the courts that was law. 
Consequently,, although he regarded constitutional acts of 
Congress as the supreme law, he cut through the technicalities 
of the common law or broke with judicial precedents when 
they seemed to interfere with the adminisIraJiQIL Q justice. 

g attitude toward acts of Congress 

and toward the judicial forms of the law is indicated by the 
statement in one of his decisions, "But this_court does not feel 
Jtself authorized to treat the directions of an act of Congress 
as if ^gftf tfeat a. technical difficulty growing out of ancient 
rules of the common law." 71 

His was the conception which Charles Warren expressed 
when he said, "However the Court may interpret the pro- 
visions of the Constitution, it is still the Constitution which is 
the law and not the decision of the Court." 72 In 1832 he 
wrote into Jackson's Bank Veto message the statement that 
"Mere precedent is a dangerous source of authority. . . ," 73 
In 1848 in his dissent in the Passenger Cases he said, after 
referring to a previous decision of the Court, 

After such opinions, judicially delivered, I had supposed that ques- 
tion to be settled, so far as any question upon the construction of 
the constitution, ought to be regarded as closed by the decision of 
this court. I do not, however, object to the revision of it, and am 
quite willing that it be regarded hereafter as the law of this court, 

09 Sec. 2, p. 59. 

70 His Dred Scott opinion, 19 Howard, 393, is an excellent example of the 
application of this rule to constitutional interpretation. 

71 United States v. Curry et al, 6 Howard, 113 (1847). 

72 The Supreme Court in United States History, II, 749. 

73 Richardson, op. cit.j II, 581. 


that its opinion upon the construction of the constitution is always 
open to discussion when it is supposed to have been founded in 
error, and that its judicial authority should hereafter depend alto- 
gether on the force of the reasoning by which it is supported. 74 

Taney's most important break with the rule of stare 
deems was in the case ofj^enesee Chief v. Fitzhugh. 75 Pre- 

vious to that time the courts ^2^j w g^^^ ac j inter- 
preted admiralty jurisdiction as extending only over tide 
water, in accordance with the rule of English common law. 
In this decision Taney extended admiralty jurisdiction in the 
United States to the inland navigable waters beyond the ebb 
and flow of the tide. In so doing he overruled two previous 
decisions of the Supreme Court 76 and a doctrine previously 
regarded as settled. 77 His decision applied the law in accord- 
ance with the obvious needs of American conditions. ._"7~ ~"~ 

The liberalizing injlun^^ 

has not been confined tojts influence. on admiralty law. It 
has been cited on numerous occasions and under a variety of 
circumstances when judges have been impelled to break with 
precedent in order to accomplish jwhat seemed to .Ifiem^ tpjbe 
the real purposes of the Constitution. In 1895 Chief Justice 
Fuller, in a decision of the Supreme Court declared, after 
quoting Taney's words in the Genesee Chief case, that the 
duty of the Court to maintain the fundamental law of the 
Constitution "requires it not to extend any decision upon a 

74 7 Howard, 470 (1848). Mr. Justice Brandeis accepts this as the correct 
rule for judicial Interpretation In his dissenting- opinion in Burnet v. Coronado Oil 
& Gas Co., 285 U. S. 412-13 (1931). 

75 12 Howard, 443 (1851). 

76 The Thomas Jefferson, 10 Wheaton, 428 (1825) and The Steamboat Orleans 
v. Phoebus, II Peters, 175 (1837). 

77 Mr. Justice Brandeis arguing against the application of the rule of stare 
decisis in his dissenting opinion in State of Washington v. W. C. Dawson & Co.> 
264 U. S. 238, 239 (1924) said, "The existing admiralty jurisdiction rests, in 
large part, upon like action of the Court in The Genesee Chief, ... In that case 
... a doctrine declared by Mr. Justice Story with the concurrence of Chief Justice 
Marshall, and approved by Chancellor Kent, was abandoned when found to be 
erroneous, although it had been acted on for twenty-six years." 


constitutional question if it is convinced that error in principle 
might supervene." 78 This is a principle which is essential to 
constitutional government. 

It should not be inferred from what has been said that 
Taney was lacking in regard for the fundamental principles 
of the common law. On the contrary he held them in great 
respect. He regarded the common law as part of American 
law when adopted by the national or State governments. 79 
As such it was subject to change by the legislature. 80 As a 
jurist he followed the rules of the common law for the con- 
struction of statutes except, as in the Genesee Chief case, when 
there was something about the American situation which 
made them inapplicable. 81 

78 Pollock v. Farmers' Loan and Trust Co., 157 U. S. 576 (1894.). Other de- 
cisions in which the Genesee Chief decision has been quoted in regard to the rule 
of stare decisis are: Brickhouse et al. v. Hill, 167 Ark., 520; 268 S. W. 867 
(1925)5 State v. Lewis, 6g Ohio State, 208-9; 69 N. E. 134 (1903); Prall v. 
Burckhartt, 299 111., 405 132 N. E. 288 (1921)5 State v. Savidge, 144 Wash., 
310; 258 Pac. 4 (1927). 

79 On one occasion he said, referring to the jurisdiction of the Supreme Court, 
"But we cannot derive it from the common law. For it has been settled, since the 
beginning of this government, that the courts of the United States as such, have no 
common-law jurisdiction, civil or criminal, unless conferred upon them by act of 
Congress. It is true that the courts of the United States, when sitting in a State, 
administer the common law, where it has been adopted by the State. But it is 
administered as the law of the State, under the authority and direction of the act 
of Congress, which makes the laws of the State the rule of decision in a court of 
the United States, when sitting in the State, provided such laws are not contrary 
to the Constitution, laws, or treaties, of the United States." Pennsylvania v. 
Wheeling Bridge Co., 13 Howard, 580 (1851). Dissenting opinion. 

80 "But in many of the states and territories, the ancient common-law remedy 
for the purpose of obtaining an allotment of dower, as well as the remedies for 
other mere legal rights, have been changed for others more convenient and suitable 
to our situation and habits. Yet they are regarded as cases at law, although they 
are not carried on according to the forms of the common law." Parish v. Ellis, 16 
Peters, 453 (1842). 

81 In the Charles River Bridge decision, after quoting from an English decision, 
he said, "Borrowing, as we have done, our system of jurisprudence from the Eng- 
lish law; and having adopted in every other case, civil and criminal, its rules for 
the construction of statutes; is there anything in our local situation, or in the 
nature of our political Institutions, which should lead us to depart from the 
principle where corporations are concerned?" Charles River Bridge v. Warren^ 
Bridge, ii Peters, 545 (1837). 


The respect in which Taney held the essential principles 
of the common law is revealed in a letter which he wrote to 
a friend in 1854. in regard to proposed law reforms in Mary- 
land. In the letter he said: 

I am sensible, indeed, that there are many more forms and tech- 
nicalities in common law proceedings which the Courts ought to 
have reformed long ago. The power has been given to themj}y 
the Legislature to give judgmenPaccor3mg to w the ngt&^of jtb 
mattef," "without regard to matters of form; and yet they have 
obstinately '""{I must say) continued to treat as a matter of sub- 
stance what_evTdeHtIy" was nothing but form, merely because it was 
, called substance in some of the old law books. I fear they will 
continue to do so, without some specific direction from the Legis- 
lature. But when that direction is given, it will require the 
greatest care and consideration to preserve all that is really essential 
to the common law and trial by jury, and dispense with every- 
thing else. . . . But to do this by legislation, and yet preserve in 
full vigor and usefulness the great principles of the common law 
and trial by jury (without which, in my judgment, no free gov- 
ernment can long exist), will require much reflection and care in 
matters of detail, and great perspicuity in language. 82 

Regarding substance as much more important than form, 
he was yet aware that the common law, as Coke had put it, 
"hath been fined and refined by an infinite number of grave 
and learned men." 83 This attitude and its influence on his 
decisions gives Taney continuity with the past. His willing- 
ness to change rules of interpretation which no longer served 
the ends of justice,, and his acknowledgment that the law in 
America rested on its adoption by the representatives of the 
sovereign people and could be changed Jby, them, leaves the 
"way open for progress and gives him continujty with the 

83 Tyler, op. cit., p. 333. 

83 J. H. Thomas, Systematic Arrangement of Lord Coke's First Institute of the 
Laws of England, I, I. 



In concluding this chapter on Taney's conception of the sov- 
ereign will, it may be wise to state concisely certain basic 
features of his theory. So far as we may learn from his ex- 
pressions he regarded the sovereign as absolute except for 
self-imposed limitations. Realizing that the sovereign people 
in the United States cannot speak with the same loquacity 
arid directness on every occasion as might the sovereign king 
of a petty principality, he goes to the Constitution for "the 
supreme law., and regards it as the only direct expression of 
the sovereign will.^ The government is the delegated agent 
of the sovereign in the everyday affairs of the state and its acts 
are to be regarded as the acts of the sovereign as long as they 
are constitutional. The laws of Congress are binding because 
they are made so by the Constitution, but only when Jthe^y 
harmonize with its provisions. The Supreme Court as the 
interpreter, of the sovereign will must find its authority in the 
Constitution as written, and not in their own precedents or 
the forms of the common law. 



The "Democratic Movement in America 

TANEY BELIEVED whole-heartedly in the sovereignty of the 
citizens who compose the state and regarded it as a matter of 
the utmost importance that the control of the government 
should not slip from their hands. In the United States of 
his time men no longer feared the establishment of mon- 
archical institutions. The danger to popular sovereignty 
seemed to lie in political control by a privileged economic 
class. Years before, Rousseau had declared that when an 
association within the state becomes "so great as to prevail 
over all the rest . . . there is no longer a general will, and 
the opinion which prevails is purely particular." 1 In other 
words the acts of the state are made to serve the interests of 
the dominant class. As a political leader Taney was alert to 
prevent the development of any such power which would 
threaten the control of the whole American people over their 

The democratic movement has made itself felt in re- 
surgent waves in American history. Jeffersonian democracy, 
the Jacksonian revolution, and the liberalism of the early 
twentieth century were based on principles of government 
which were fundamentally alike. In a sense they were re- 
current phases of the same movement. As one of the cham- 
pions of popular control of the government in action, Taney's 
views are similar to those of the other democratic leaders in 
the line which extends from Jefferson to Bryan and La 

1 The Social Contract, Book 2, Chap. 3, pp. 25-26. 



Follette and Wilson. In this phase of his political thought 
he is particularly American in his viewpoint. 2 

In each phase o the democratic movement the leaders of 
democracy have fought against the political dominance of a 
powerful economic class. The struggle was dramatized in 
the Jackson administration in the contest over the attempted 
recharter of the Bank of the United States and the discon- 
tinuance of government deposits in it. As one of the influen- 
tial leaders in Jacksonian democracy Taney played an im- 
portant part in this contest 3 and was one of the President's 
most aggressive advisers. 

From the first cabinet meeting in which the Bank was 
discussed after he became Attorney General 4 until he left the 
cabinet Taney exerted his influence against the recharter of 
the Bank. Neither the friends nor the enemies of the Bank 
were long in doubt as to his position. 5 When Congress 

2 This is not meant to Imply that there have not been similar contests in other 
countries. It is simply that Taney's ideas and their background are typically Amer- 
ican. He is one of the leaders of the democratic movement, largely agrarian, 
which from the time of Jefferson to our own time has opposed the dominance of 
big business Interests. 

3 "Taney was Jackson's chief reliance for arguments justifying the removal 
of the deposits, and his opinions on that subject are important." Correspondence 
of Andrew Jackson, V, 33 note. 

4 Taney left an Interesting discussion of the Bank struggle which Is now In the 
Library of Congress in manuscript form. In it he says that the first meeting of 
the new cabinet in which the Bank was discussed was held just before Jackson sent 
his annual message to Congress In December, 1831. When the message was read 
to the cabinet Taney objected to the equivocal manner in which Jackson handled 
the subject of the Bank. He says, "It was my first conflict in the cabinet. I 
stood alone in it; and in opposition to Mr. Livingston & Mr. McLane who were 
experienced politicians, & in both of whom I knew that the President at that time 
reposed the highest confidence." He failed to win Jackson to his viewpoint, and 
he says, "I left the Cabinet meeting when it had broken up ... with strange 
doubts also whether under the influence of his new advisers he would not be 
persuaded to consent to the recharter of the bank. ..." Manuscript, pp. 73, 87. 

5 C. C. Cambreleng, Jackson's leader in the House of Representatives wrote in 
January 1832 that Taney was with the most ardent Democratic leaders in the 
Bank struggle. J, S. Bassett, The Life of Andrew Jackson*, p. 612. For reports 
of Taney's opposition to the Bank by the lobbyist of the Bank see R. C. McGranej 
The Correspondence of Nicholas Kiddle, pp. i$o, 183. 


heeded the request of the Bank and provided for its re- 
charter Taney urged that the bill be vetoed. 6 Later he urged 
the discontinuance of government deposits in the Bank, 
although its old charter had a few more years yet to run. 7 
The reason for his relentless hostility to the Bank is to be 
found in his belief that the issue involved was one of funda- 
mental importance to the nature of the American political 
system. The controversy, as he saw it, was between a group . 

X^ . (wtJ ^,rf>Miw 1 j.^^ " * * * **^^- 1 * > *"' *"**'* * 

of wealthy owners of corporate stock and the masses of the 
people, and the control of the government was at stake. ^ 

Oligarchy against Democracy 

That Taney regarded the Bank struggle as part of what Wil- 
liam Jennings Bryan called the "world-wide, never-ending 
contest between the beneficiaries of privilege and the unor- 
ganized masses" 8 is evidenced most clearly in a speech which 
he made after his retirement from the cabinet. In that speech 
he said: 

In, every period of the world, and in every nation, history is full 
of examples of combinations among a jew individuals, to grasp all 
power in their own hands, and wrest- it from the hands of the 
many. The invaluable blessing of self-government has never yet 
been obtained by any nation, without a severe struggle and many 
sacrifices and when the blessing has once been obtained, constant 
vigilance has been necessary to preserve it. 9 

Popular sovereignty, in this view, is not a God-given the- 
oretical inheritance of mankind, but a prize which is won by 
struggle and maintained by vigilance. Taney may have had 
in mind the achievement of English liberty when he ex- 
pressed this conviction, for it is a natural view for one well 
versed in the development of English legal institutions. 

6 Taney was in Annapolis at the time. He wrote the President a long letter 
advising the veto. Sterner, op. cit*, p. 107. 

7 Correspondence of Andrew Jackson, V, 33-41. Tyler, op. cit. t pp. 195-98. 
8 W. J. Bryan, A Tale of Two Conventions, p. 27. 

9 Daily Albany Argus 3 August 29, 1834. 


It seemed to Taney that the American people in the 
struggle with the Bank were facing for the first time an issue 
which had long confronted the older nations of the world. 
"It is shall the power of the government be exclusively in 
the hands of the great money holders, or shall it continue 
where the constitution has placed it, in the hands of a free and 
enlightened people. These opposing principles have long 
agitated the countries of Europe, and now we are doomed to 
meet here the struggle between them." 10 He sees in the 
struggle an issue vastly more important than a conflict be- 
tween political parties. It is a struggle for sovereignty be- 
tween an economic class on one hand and the whole people 
on the other. He says, "Now for the first time the issue is 
made up, and the question boldly and distinctly presented to* 
us, whether this noble country is to be governed by the power 
of money in the hands of the few, or by the free and un- 
bought suffrages of a majority of the people. It is a new ques- 
tion. ,. .It has nothing to do with the ancient or modern 
divisions -$ paities," 11 

Taney was not the only one of the Jackson leaders who 
saw the issue of popular sovereignty involved in the contest 

10 ibid. 

Confronted by still larger combinations of wealth Robert M. LaFollette said in 
1912, "The great Issue before the American people to-day is the control of their 
own government. In the midst of political struggle, it is not easy to see the his- 
torical relations of the present Progressive movement. But it represents a conflict 
as old as the history of man the fight to maintain human liberty, the right of 
all the people. 

"A mighty power has been builded up in this country in recent years, so strong 
. . . that men are gravely inquiring whether its iron grip on government and 
business can ever be broken. ... It rules in the organization of legislative bodies, 
state and national, and of the committees which frame legislation. Its influence is 
felt in cabinets and in the policies of administrations, and is clearly seen in the 
appointment of prosecuting officers and the selection of judges upon the Bench. 

"And this THING has grown up in a country where, under the Constitution 
and the law, the citizen is sovereign!" Speech at the Banquet of the Periodical 
Publishers' Association, February 2, 1912. LaFollette* s Auto bio graphy, pp. 763-64. 
Quoted by permission of the Progressive Publishing Co. 


with the Bank, although he seems to have stressed it more 
than his associates did. But Thomas Hart Benton objected 
to the recharter because he thought the Bank would "draw 
to itself too much of the political power of this Union. . . ," 12 
The Globe, newspaper organ of the Jackson administration, 
said editorially, "We doubt exceedingly whether the agricul- 
tural people of the United States, will consent to the re-estab- 
lishment of this institution, which overshadows with its influ- 
ence the authorities which spring from their own suffrages." 13 
Thus, there seems to have been a general feeling among the 
Jacksonians that an institution such as the Bank was incom- 
patible with democracy. 

To Taney the control of the state by a money power was 
especially distasteful. It was, in his opinion, the worst kind 
of government. Speaking to his friends and neighbors at 
Frederick he said: 

It was obvious to my mind . . . that a great moneyed cor- 
poration, possessing a fearful power for good or for evil, had 
entered into the field of political warfare, and was deliberately pre- 
* paring its plans to Obtain, by means of its money, an irresistible 
political influence in the affairs of the nation, so as to enable it to 
control the measures of the Government. It was evident, if this 
ambitious corporation should" succeed in its designs, that the liberties 
of the country would soon be destroyed, that the power of self- 
government would be wrested from the people, and they would 
find themselves, at no distant day, under the dominion of the worst 
of all possible governments a moneyed aristocracy. 14 

Taney was opposed to participation in politics by "a great 
monied corporation" even though its own interests were in- 
volved. It was his conviction that "The right of such an 

12 Speech of Mr. Benton of Missouri against the Renewal of the Charter of the 
Sank of the United States in the Senate February 2, 1831, p. 6 (printed by Duff 
Green, 1831). 

18 September 21, 1831. 

14 Tyler, op. cit., pp. 227-28. 


institution to interfere in the political concerns of the coun- 
try, for any cause whatever, can never be recognized. . . ," 15 
He was thinking of the conflict over sovereignty in terms of 
the forces actually at work in the United States. The one 
great corporation of the time, whose wealth overshadowed 
that of any other single economic combination, was using its 
power in politics to secure from the government a continua- 
tion of the privileges which gave it the financial dominance 
of American life. In an age when the privilege of voting 
was being rapidly extended among the common people he 
thought that if the Bank were allowed to exert itself con- 
tinually in politics it would make American democracy merely 
an empty form. 

The Weapons of a Wealthy Class 

On several occasions Taney discussed the means which a 
money power could use, and which the Bank was using, to 
gain control of the government. As he describes the power 
of the weapons which lie at hand for the use of such a power, 
one cannot help believing that the cause of popular sov- 
ereignty must have seemed almost hopeless to him had he 
not had a vast amount of confidence in "the intelligence and 
patriotism of the people." 16 

One of the most effective instruments for influencing 
popular opinion in a large country is the control of the press. 
Taney pointed to the Bank's influence over the press as one 
of its dangerous weapons, and said, "The attempt of a great 
monied institution like the Bank of the U. States to exercise 
an influence over the press of the country by the mere power 

15 Report on the Removal of Deposits, December 4., 1833, Public Documents 
and Proceedings of the Twenty Third Congress } p. 23. 

16 "But I sincerely believe that the purity of our institutions and the best in- 
terests of the country call for prompt, firm and decisive measures on the part of 
the Executive, and I rely for support on the intelligence and patriotism of the 
people." Taney to Jackson, March, 1833, Correspondence of Andrew Jackson, 
V, 41- 


of money, is pregnant with so much evil that it cannot be too 
severely and pointedly reprobated." 17 He saw in such a 
course of action a serious threat to the purity of democratic 

Taney asserted that the Bank was using its money, 
through control of the press and the issuance of pamphlets, 
to destroy the political standing of the leaders who prevented 
its gaining control of the government. 18 It seemed to him 
that the Bank's methods of warfare were typical of those used 
by moneyed classes generally when they sought control of 
the government. They would go to any length to destroy 
their enemies, the champions of popular sovereignty. After 
alluding to the Bank's "unwearied perseverance" in its at- 
tempts to destroy him "in the estimation of the citizens of the 
United States" he declared, "No man who has at any period 
of the world stood forth to maintain the liberties of the 
people against a moneyed aristocracy grasping at power has 
ever met with a different fate. Its unrelenting, unquenchable 
hate has never failed to pursue him to the last hour of his 
life, and when in his grave." 19 

Taney was aware that political leaders were not the only 

17 Ibid., p. 39- 

18 Report on the Removal of Deposits, December 4, 1833, Public Documents 
and Proceedings of the Twenty Third Congress, p. 23. The Bank's expenditure 
for "printing not connected with the daily operations of the Bank" from 1829 to 
1834, inclusive, was $65,268.91. To this should be added the expenditures of the 
president of the Bank, who was authorized to spend money for propaganda purposes 
on his own orders and for which no vouchers were required. Under this authority 
between March u, 1831 and September 30, 1834, $27,155 was spent, in addition 
to the sum mentioned above. The Bank's expenditures for printing were much 
larger in the election years of 1832 and 1834, which led a Senate committee of 
1834 that had investigated the Bank to say, "The augmented amount of expenditure 
in the years 1832 and 1834 . . . taken in connexion with the circumstance, that 
during those two years important elections were to take place, subjects it to the 
charge, whether well or ill founded the Senate will determine, of a direct inter- 
ference in elections from which it should most cautiously have abstained even in 
appearance." Senate Doc. 17, 23d Cong. 2d Sess., (Dec. 18, 1834) pp. 44-4?- 

TO Tyler, of. tit., p. 229. 


ones made to feel the weight o the displeasure of a wealthy 
class which sought to control the government. Wealth brings 
power which may be used by those who possess it to force 
the common people into economic submission. Of the Bank 
he said: 

And it brings forward its demands in the spirit and temper, 
which in all ages, has marked the moneyed aristocracy, when they 
believed themselves strong enough to govern. It never appeals to 
the high and generous feelings of the people. It must govern by 
other means. If the poor laborer dare to think for himself, he is 
contemptuously dismissed from his employment, and, with his 
family, left to starve the debtor is pressed for money he is unable 
to pay the trader, with but moderate means, is denied the usual 
facilities necessary for the successful prosecution of his business. 20 

He knew that economic slavery was incompatible with 
political democracy. And in this instance he was pointing to 
weapons which may be used by economic overlords with great 
effect. Some years later in a letter to Jackson he expressed 
the fear that the money power was irresistible in large com- 
mercial cities. 21 

Taney pointed out the fact that a corporation, because of 
its nature, will tend to be more heartless in its actions than 
will an individual. Corporation sinning enables the perpetra- 
tors to escape without any acute consciousness of guilt. Re- 
ferring to the Bank he said, "A corporation of the latter 
description is constantly acting under the conviction of its 
immense power . . . and is dealing also with the fortunes 
and comforts of men who are distant from them and to whom 
they are personally strangers. The Directors of the Bank 
are not compelled to hear daily the complaints and witness 
the sufferings of those who may be ruined by their proceed- 
ings. From the nature of man such an institution cannot 

20 Daily Albany Argus, August 29, 1834. 

21 Charles Warren, The Supreme Court in United States History, II, 36-37. 


always be expected to sympathize with the wants and feelings 
of those who are affected by its policy." 22 

A Group Which Threatens Popular Sovereignty is a 
Public Enemy 

Taney accused the Bank of bringing on a depression in order 
to punish the people for the action of the government in 
refusing to accede to its demands. In thus bringing suffering 
to the people, it seemed to him that the Bank was just as 
much an enemy of the United States as would have been a 
foreign power with which the nation was at war. In char- 
acterizing its action he said: 

It determined to rely on its power, and redress itself. And like a 
foreign enemy waging open war, it sought to alarm us into* sub- 
mission by ostentatiously displaying its power, first at one point and 
then another, and by the unsparing vengeance with which it 
TlrougEt ruiiTin every place where" its" power could reach. It en- 
deavored, by spreading dismay thro'out the nation, to break the 
spirit of the people, and compel them to submit to its demands. It 
sought to obtain from their sufferings and their fear, what it did 
not hope would be yielded to their arguments and petitions. 
When the Bank determined to pursue this course, in what respect 
did its conduct and principle of action differ from that of an open 
and avowed public enemy? 28 

These statements show concisely and emphatically 
Taney's attitude toward the Bank. He sees it as a powerful 
group within the state a group which refuses to accept the 
verdict of the government as final and attempts to force the 
people to repudiate the work of their agents. In attempting 

^Report on the Removal of Deposits, December 4, 1833, Public Documents 
and. Proceedings of the Twenty Third Congress t p. 25. 

Seventy-five years later E. A. Ross was to write, "The modern high-power 
dealer of woe wears immaculate linen> carries a silk hat and a lighted cigar, sins 
with a calm soul, leagues and months from the evil he causes." And "There is 
nothing like distance to disinfect dividends." Sin and Society; pp. 10-11, 107. 

23 Daily Albany Argus , August 29, 1834. 


this, it might as well declare war on the state, for it seeks 
through the suffering of the people to destroy their sov- 
ereignty. 24 It is the enemy of the state and to Taney the 
enemy within the state is just as dangerous as the enemy 
without the state. 

The Government must serve only the Sovereign People 
Taney discusses the importance of firm and independent ac- 
tion on the part of the government when a powerful class 
threatens the supremacy of the people. As Attorney General 
he wrote to Jackson, "For if the measures of the Government 
are to be influenced by the fear of its resentment or opposi- 
tion, the time will soon come when its power must be en- 
countered in some form or other, or the government be in 
effect surrendered into the hands of the Bank." 25 In his 
report to Congress on the discontinuance of government de- 
posits in the Bank he called attention to the immense power 
of the Bank and then said: 

But I have not supposed that the course of the Government ought 
to be regulated by the fear of the power of the Bank. If such 

2 *The Bank used strenuous methods to accomplish its ends. From December 
31, 1830 to May i, 1832 it increased its loans from $42,4.02,304.24 to $70,428,- 
070.72. This was a $28,000,000 increase In sixteen months, and at a time when 
the Bank's charter had only four more years to run. Report on the Removal of 
Deposits, December 4, 1833, Public Documents and Proceedings of the Twenty 
Third Congress } p. 22. The Bank applied for a recharter in January, 1832. Jack- 
son vetoed the Congressional act providing for a recharter July 10, 1832. The 
Bank began to contract its business in August, 1833. From the first of August, 
1833 to the first of April, 1834 the total contraction was $13,000,000 out of $62,- 
000,000. From August 1833 to September, 1834 the Bank increased its specie on 
hand from $10,023,000 to $15,500,000. Most of this specie came from the collec- 
tion of state bank balances, and forced the state banks to call in their paper. R. C. 
H. Catterall, The Second Bank of the United States, pp. 321-24. Catterall, who is 
on the whole favorable to the Bank says, "The enormous reductions made by the 
bank were certainly In excess of any possible danger, and were continued long after 
such danger threatened. The president and company of the Bank of the United 
States were . . . not merely angry, but vindictive, and vindictive with calcula- 
tion. They hoped to force a re-charter or at least a restoration of the deposits by 
exercising a monetary pressure upon the country." Ibid., p. 329. 

25 Correspondence of Andrew Jackson, V, 68. 


a motive could be allowed to influence the legislation of Congress, 
or the action of the Executive Departments of the Government, 
there is an end to the sovereignty of the people, and the liberties 
of the country are at once surrendered at the feet of a monied 
corporation, . . . Will submission render such a corporation 
more forbearing in its course? What law may it not hereafter 
demand, that it will not, if it pleases, be able to enforce by the 
same means? 26 

This is a manifesto of independence for the government. 
He recognizes that the government must be submissive only 
to the sovereign. If the people cannot control it they are no 
longer sovereign. The government must defy any special 
interest within the state which seeks to dictate its actions. If 
it does not, then a "particular will" and not the "general 
will" will prevail. 

Taney's -place in Jefersonian Democracy 

In his attitude toward the Bank, and moneyed corporations 
in general, Taney belongs to the school of Jefferson and John 
Taylor, Jefferson and Taylor were agrarians who feared the 
growth of great business interests and the influence of a 
moneyed aristocracy in politics. Taylor asserted that "Enor- 
mous political power invariably accumulates enormous wealth 
and enormous wealth invariably accumulates enormous po- 
litical power. Either constitutes a tyranny, because the ac- 
quisitions of both are losses of liberty and property to na- 
tions." 27 In 1803 Jefferson wrote of the Bank, "This institu- 
tion is one of the most deadly hostility existing, against the 
principles & form of our Constitution." And after expressing 
a fear of the power that it might exercise in a time of crisis 
he added, "I deem no government safe which is under the 
vassalage of any self-constituted authorities, or any other 

^Public Documents and Proceedings of the Twenty Third Congress, p, 25, 
27 John Taylor, Tyranny Unmasked, p. 253. 


authority than that of the nation, or it's regular func- 
tionaries." 28 Later, in 1816, he wrote, "I hope we shall take 
warning . . . and crush in it's birth the aristocracy of our 
monied corporations which dare already to challenge our gov- 
ernment to a trial of strength and bid defiance to the laws of 
our country." 29 Taney was not Jeffersonian in all of his 
political philosophy, for he was not as thoroughly agrarian 
as Jefferson, but in his distrust of a money power and his 
jealous attitude toward the rights of the people when they 
conflict with chartered privileges of corporations he follows 
in the footsteps of the sage of Monticello- 

The trust busters of the Theodore Roosevelt period be- 
longed to this school of political thought. And Woodrow 
Wilson, a little later, declared that the government must 
control the banking system so as to prevent the concentration 
of the nation's monetary resources in a few hands, 30 that 
business must be freed from all forms of monopoly, 31 and 
that the government must not allow any other organization 
to become as strong as itself. 32 It is a school of thought that 
seeks to maintain political equality in a world of economic 
inequality, although it is aware that the two are hard to recon- 
cile. It abhors oligarchy and seeks the preservation of actual 

The "Danger in Chartered Privileges 

In the struggle with the Bank Taney revealed that he ob- 
jected not only to its meddling in politics, but also to its 
monopolistic features. He saw in huge chartered monopolies 
a threat to the general welfare and to the power of the gov- 

29 To Gallatin, December 13, 1803, The Writings of Thomas Jefferson, VIII, 

29 To George Logan, November 12, 1816, ibid., X, 69. 

80 June 23, 1913, The New Democracy, I, 39-40. 

81 March 8, 1913, ibid., p. 29. 
^Ibid., II, 307-8. 


ernment as well. Here again he was following in the path 
of the Jeffersonians, for John Taylor had causticly declared, 
"A crocodile has been worshipped, and its priesthood have 
asserted, that morality required the people to suffer them- 
selves to be eaten by the crocodile . . . ," and he added 
"Law charters are a family of those crocodiles." 33 

In Taney's report to Congress on the removal of deposits 
he said that aside from the Bank's objectionable conduct, "It 
cannot be supposed that the grant to this corporation of ex- 
clusive privileges at the expense of the rest of the community, 
for twenty years, can give it a right to still further enjoyment 
of, its profitable monopoly." He declared further that he 
was convinced that the existence of "such a powerful monied 
monopoly" was dangerous to "the liberties of the people." 34 

In the constitutional arguments which Taney wrote into 
Jackson's veto message he voiced an opinion that Congress 
had no power to grant monopolies, except in the case of 
patents and copyrights where the power was specifically given 
by the Constitution. To grant a chartered monopoly, it 
seemed to him, was to limit the power of the government 
in a way that it could not constitutionally be limited. After 
referring to patents and copyrights he said, "On every other 
subject which comes within the scope of Congressional power 
there is an ever-living discretion in the use of proper means, 
which can not be restricted or abolished without an amend- 
ment of the Constitution." 35 It was his opinion that "It can 
not be 'necessary* or 'proper* for Congress to barter away or 
divest themselves of any of the powers vested in them by the 
Constitution to be exercised for the public good." 36 Assum- 
ing that Congress had the power to charter one bank, it had 

83 John Taylor, An Inquiry into the Principles and Policy of the Government 
of the United States, p. 69. 

* Public Documents and Proceedings of the Twenty Third Congress , p. 16. 
85 Richardson, op. cit., II, 584. 
fcrf., pp. 583-84- 


the power to charter more than one. If one were necessary, 
conditions might develop which would make another neces- 
sary. Congress had no constitutional power to bind itself for 
fifteen years not to charter other banks if they would serve 
the general welfare. So ran his argument. 37 

This attitude was reflected in a number of his judicial 
decisions. The Constitution specifically protected the obliga- 
tion of contracts, and under John Marshall's leadership this 
provision had been strictly enforced. Taney recognized the 
force of the constitutional provision, but whenever the power 
of the government was at stake he construed a contract so 
strictly that the government's power would be left unifn- 
paired, unless the wording of the contract was so plain that 
this could not be done. There were no chartered privileges 
by implication so far as his decisions were concerned. 

In the Charles River Bridge decision, 38 involving a case 
where a State had chartered a toll bridge and later proposed 
to allow the building only a short distance away of a com- 
peting bridge, which would eventually become a free bridge, 
Taney said he thought there could be no serious difficulty in 
regard to the rule for the interpretation of the charter. "It 
is the grant of certain franchises by the public to a private 
corporation, and in a matter where the public is concerned. 
The rule of construction in such cases is well settled, both in 
England and by the decisions of our own tribunals." 39 After 
quoting an English case which laid down the rule that am- 
biguities in a charter were to be strictly construed against the 
corporation and in favor of the public, he said he saw nothing 
in America's local situation to make it wise to depart from 
this rule. Then he added: 

Ibid., pp. 583-84- 

^Charles River Bridge v. Warren Bridge, n Peters, 420 (1837). 

Ibid., 544- 


We think not; and it would present a singular spectacle, if, while 
the courts in England are restraining, within the strictest limits, 
the spirit of monopoly . . . and confining corporations to the 
privileges plainly given to them in their charter; the courts of this 
country should be found enlarging these privileges by implication; 
and construing a statute more unfavorably to the public, and to 
the rights of the community, than would be done in a like case in 
an English court of justice. 40 

After referring to the public concern in the development 
of transportation in the rapidly growing American nation he 
said, "The whole community are interested in this inquiry, 
and they have a right to require that the power of promoting 
their comfort and convenience, and of advancing the public 
prosperity, by providing safe, convenient, and cheap ways 
for the transportation of produce and the purposes of travel, 
shall not be construed to have been surrendered or diminished 
by the State unless it shall appear by plain words that it was 
intended to be done." 41 

This principle of the strict construction of corporation 
charters was reiterated in a later case where a canal company 
claimed the privilege of charging toll for the use of its canal. 
Referring to the argument of the corporation's lawyers that 
it could demand compensation for the use of its property like 
any other owner, Taney said, "The corporation has no rights 
of property except those derived from the provisions of the 
charter, nor can it exercise any powers over the property it 
holds except those with which the charter has clothed it. It 
holds the property only for the purposes for which it was 
permitted to acquire it, that is, to effectuate the objects for 
which the Legislature created it." 42 His attitude is plainly 
that the corporation is the servant of the public. 

He also declined to allow the surrender of sovereign 

"ibid., 545-46* */&, 549-50. 

42 Perrine v, Chesapeake and Delaware Canal Co., 9 Howard, 184 (1849). 


power by implication in cases involving corporate exemption 
from taxation. In one such decision he said, "And neither 
the right of taxation nor any other power of sovereignty 
which the community have an interest in preserving, un- 
diminished, will be held by the court to be surrendered, 
unless the intention to surrender is manifested by words too 
plain to be misunderstood." 43 While admitting that the 
people might give their agents power to exempt corporations, 
by contract, "from their equal share of taxes" he was sus- 
picious that such contracts would turn out to be injurious 
rather than beneficial to the public. 44 When corporations 
claimed tax exemption by chartered grants before his Court, 
they had to establish their rights beyond the shadow of a 

The Maintenance of the General Will 

Henry D. Lloyd in 1894 called attention to the fact that it is 
very easy for "those who want all the goods of government 
charters, contracts, rulings, permits" to combine with place 
hunting politicians, and that from such a union is likely to 
come a formidable and unrestrained tyranny. 45 Taney was 
keenly aware of the possibility of such a tyranny. His pro- 
phylactic lay^ in the _ maintenance of ^actual popular^ sov- 
ereignty and for this end eternal vigilance on the part of the^ 
people .was necessary. As an interpreter of the law he held 
that the officers of the government could not contract away 
any power which belonged to the sovereign without express" 
constitutional authorization for such action. Where corpora- 
tion charters were involved he was jealous to protect the 
power of the sovereign people. As a politician he did not 

43 Ohio Life Insurance and Trust Co. v. Debolt, 16 Howard, 4.35 (1853). See 
also Philadelphia etc. R. Co. v. Maryland, 10 Howard, 392-93 (1850). 

44 Ohio Life Insurance and Trust Co. v. Debolt, 16 Howard, 431 (1853). 

45 H. D. Lloyd, Wealth Against Commonwealth, pp. 519-20, 


intend to see the people surrender any aspect, of their sov- 
ereignty without being warned beforehand^ and as an inter- 
preter of the jtovereign will he did not intend to allow the 
surrender of any portion of the sovereign power without a 
clear expression of the sovereign will. 


Sovereignty in the United- States 

BECAUSE OF the conflict of interests between North and South, 
the question of the nature of the federal Union and the loca- 
tion of sovereignty in the United States was warmly discussed 
throughout the period of Taney's public life. On the one 
hand were those who believed that the Constitution of the 
United States was a compact between the States which had 
established it as sovereigns and remained sovereign as parties 
to it. John C. Calhoun concisely expressed the theory of this 
group when he said, "According to my conception, the whole 
sovereignty is in the several States, while the exercise of 
sovereign powers is divided. . . . )n On the other hand were 
those who held with Mr. Justice Story that the Constitution 
was established by, "The people of the United States, not the 
distinct people of a 'particular state with the people of the 
other states, 3 ' and that it was the irrevocable and supreme 
law of the nation. 2 The latter group, although inclined to 
stress the power of the nation, did not assign to it exclusive 
sovereignty; They held that sovereignty was divided be- 
tween the States and the nation. Webster expressed their 
ideas in 1830 when he said, "The States are, unquestionably, 
sovereign, so far as their sovereignty is not affected by this 
supreme law. . . . The general government and the State 
governments derive their authority from the same source. 

1 Speech in the Senate in February 1833, The Works of John C. Calhoun, II, 

233 ; 

2 Joseph Story, Commentaries on the Constitution of the United States, 5th ed., 
Vol. I, Sec. 352, pp. 252-53. Webster said of the Constitution, ". . . it pronounces 
that it is established by the people of the United States, in the aggregate." Re- 
marks in the Senate January 27, 1830, The Works of Daniel Webster, III, 346. 



. . . The national government possesses those powers which 
it can be shown the people have conferred on it, and no 
more." 3 

Chief Justice Taney, into whose background had gone 
Federalism, Jacksonianism, a Southern environment, and a 
thorough study of the law does not belong wholly in either 
group. Although he accepted the theory of divided sov- 
ereignty he believed that the nature of the powers reserved 
to the States and the safeguards for those powers embodied 
in tHe Constitution were such as to make it unnecessary for 
the States to fear that the national government would en- 
croach upon their prerogatives. He was a constitutionalist. 
He looked upon the national and"SFate governments as dif- 
ferent parts of the political mechanism of our federal system 
which would function smoothly if the provisions of the Con- 
stitution were adhered to. In his judicial decisions he tried 
to maintain the division of power established in^the^Co^titu^- 
tion in order that each might function in its proper sphere. 
In his scheme of things there was no necessity and no place 
for a serious conflict between State and national governments 
over power. Back of them both were the sovereign people 
who had established them and written the Constitution. 

The Sovereign States before the Adoption of the Constitution 
Taney's approach to the question of the relation between the 
States and the national government was by the historical 
method. As did his great contemporary, John C. Calhoun, 
he went back to the American Revolution and the events 
which followed it to determine the nature of the Union, but 
unlike Calhoun he held to the theory of divided sovereignty. 
During the first period of American history under the Con- 
stitution this theory had the weight of authority back of it, as 
we shall see in discussing the background of Taney's theory. 

3 Second Speech on Foote's Resolution, delivered In the Senate January 26, 
1830 in ibid., Ill, 321-22. 


Taney held that "when the revolution took place, the 
people of each state became themselves sovereign. . . ," 4 
The exigencies of the times brought them together under the 
Articles of Confederation, but even after they had entered this 
confederation for their mutual advantage and protection they 
were still "thirteen separate, sovereign, independent States." 
Their congress "was composed of representatives of these 
separate sovereignties, meeting together as equals, to discuss 
and decide on certain measures which the States, by the 
Articles of Confederation, had agreed to submit to their de- 
cision." This body had none of the attributes of sovereignty. 
"It was little more than a congress of ambassadors, authorized 
to represent separate nations in matters in which they had a 
common concern." 5 

This view of the position of the States in the pre-Constitu- 
tion period was neither a new view nor necessarily a States' 
rights view. Justice Samuel Chase had said in 1796 in Ware 
v. Hylton y referring to the Declaration of Independence, "I 
consider this a declaration, not that the United Colonies 
jointly, in a collective capacity, were independent States, &c., 
but that each of them was a sovereign and independent State, 
that is, each of them had a right to govern itself by its own 

4 Martin v. Waddell, 16 Peters, 410 (1842) St. George Tucker wrote in 1803, 
of the American colonies, "From the moment of the revolution they became 
severally independent and sovereign states, possessing all the rights, jurisdictions, 
and authority, that other sovereign states . . . possess j and bound by no ties but 
of their own creation, except . . . the customary law of nations." Blackstone 3 s 
Commentaries, Vol. i, Appendix, Note D, p. 150. On the other hand Mr. Justice 
Story maintained that the Declaration of Independence did not find the colonies 
sovereign or make them such, "but that at the moment of their separation they were 
under the domain of a superior controlling national government whose powers 
were vested in and exercised by the general Congress with the consent of the 
people of all the States." Joseph Story, op. cit., Vol. I, Sec. 214.. 

8 Lred Scott v. Sandford, 19 Howard, 434 (1856) During the period of the 
Confederation John Adams wrote in his Defense of the Constitutions of Govern- 
ment of the United States of America ". . . congress is not a legislative assembly, 
nor a representative assembly, but only a diplomatic assembly." The Works of 
John Adam*) IV, 578. 


authority and its own laws, without any control from any 
other power upon earth." 6 And John Marshall, discussing 
the political situation of the States before the adoption of the 
Constitution said, in Gibbons v. Ogden, "It has been said that 
they were sovereign, were completely independent, and were 
connected with each other only by a league. This is true." 7 
Thus we see that Taney, in proceeding on the assumption 
that the States were individually sovereign before the forma- 
tion of the Constitution, could appeal not only to the history 
of the period, 8 but to judicial interpretation of it worthy of 
the highest respect. 

Divided Sovereignty Under the Constitution 

In discussing the closer union formed under the Constitution, 
Taney held that it was formed "by the -people of the United 
States, that is to say, by those who were members of the 
different political communities in the several States. . . ." 9 
But the States kept their sovereignty. 10 Under the existing 
system, "with the exception of the powers surrendered by the 
Constitution of the United States, the people of the several 
States are absolutely and unconditionally sovereign within 

6 3 Dallas, 224. 7 9 Wheaton, 187 (1824). 

8 Charles Warren in The Supreme Court and the Sovereign States gives some 
interesting evidence on State sovereignty in this period. "Thus, Connecticut, in its 
statute adopting a declaration of rights and privileges In 17765 declared itself a 
'Republic* which 'shall forever be and remain a free, sovereign and independent 
State'. ... In the treaty of peace, Great Britain acknowledged the United States, 
naming each State separately to be 'free, sovereign and independent States'. . . . 
The Pennsylvania Legislature recited in a statute of December 3, 1782, that 
'whereas by the separation of the thirteen United States from Great Britain, the 
Commonwealth of Pennsylvania hath become a sovereign and independent State, 
and in consequence of such separation, a government established solely on the 
authority of the people hath been formed.'" pp. 3-4. 

In 1784 when New York and Vermont were on the point of war with each 
other John Hancock, as Governor of Massachusetts, issued a proclamation of 
neutrality. Pp. 11-12. 

Dred Scott v. Sandford, 19 Howard, 410-11 (1856). 

10 Kentucky v. Dennison, 24 Howard, IO2 (1860). 


their respective territories." 11 Although Taney spoke thus in 
strong and broad terms of the reserved power of the States 
he was aware that important powers had been surrendered to 
the nation. On one occasion he referred to the "so large a 
portion of their former sovereign powers" which was sur- 
rendered by the States when the Constitution was adopted. 12 
He regarded the Union established by the Constitution 
as much more than another league of independent sovereign- 
ties. In it the people of the several States were for certain 
purposes one people. 13 The Constitution brought into being 
a new political community. 14 All persons who were citizens 
of the several States at the time the Constitution was adopted 
were members of the new political community, but after its 
adoption no State could admit new members. Only those 
who were born into it or were admitted into it by the national 
government could become citizens of the United States as a 
nation. 15 

Taney held that every person living within the boundaries 
of a State is subject to two governments, the State government 
and the national government. Both exercise powers of sov- 
"ereignfy: " "Neiffier is subject to the other. His conception 
'of the relation betweerTSie TW5 'Sovereignties is best expressed 
in his decision in the case of Ableman v. Booth where he said: 

And although the State of Wisconsin is sovereign within its terri- 
torial limits to a certain extent, yet that sovereignty is limited and 
restricted by the constitution of the United States. And the 
powers of the general government, and of the State, although both 
exist and are exercised within the same territorial limits, are yet 
separate and distinct sovereignties, acting separately and inde- 
pendently of each other, within their respective spheres. And the 
sphere of action appropriated to the United States is as far beyond 
the reach of the judicial process issued by a State judge or a State 

11 Ohio Life Insurance and Trust Co. v. Debolt, 16 Howard, 428 (1853). 

13 Dred Scott v. Sandford, 19 Howard, 438 (1856)0 

13 Ibid., 435. M Ibid., 406. M Ibid. 


court, as If the line of division was traced by landmarks and monu- 
ments visible to the eye. 16 

This is the classic statement of the theory of the two sov- 
ereignties and it emphasizes their distinctness with unusual 
force. The idea of divided sovereignty, however, was an old 
one in Court decisions. In 1793 we find Mr. Justice Iredell 
saying in Chisholm v. Georgia^ "The United States are sov- 
ereign as to all the powers of government actually sur- 
rendered: each State in the Union is sovereign as to all the 
powers reserved." 17 And in 1819 Chief Justice Marshall 
said in McCulloch v. Maryland, "In America, the powers of 
sovereignty are divided between the government of the 
Union, and those of the States. They are each sovereign, 
with respect to the objects committed to it, and neither sov- 
ereign with respect to the objects committed to the other." 18 

The Supreme Court as Arbiter between the two Sovereignties 

Taney saw the possibility of conflicts and disagreements in 
such a system of two sovereignties in one country. The courts 
of the States and of the national government would probably 
disagree as to'ffie exCenfoF the power granted to the national 
gQY^ernment. There was danger "that serious controversies 
would arise between the authorities of the United States and 
of the States, which must be settled by force of arms, unless 
some tribunal was created to decide between them finally and 
without appeal." 19 InjDrder to provide againstjthis danger 
the jurisdiction of the federal courts was extended to jalLcases,, 
arising under the Constitution and tie, Jaws,,, of the_United 
States^^,Xheir jurisdiction thus extended to unconstitutional 
as well as constitutional acts of Congress. The purpose of 

16 21 Howard, 516 (1858). 

1T 2 Dallas, 435. See also Chief Justice Jay's opinion in the same case, p. 4.71. 

18 4 Wheaton, 410. 

19 Ableman v. Booth> 21 Howard, 516 (1858). 


this provision was not only to maintain intact the sphere 
of power granted to the federal government but also to pro- 
tect the States from any encroachment of the national gov- 
ernment on their reserved powers. As the Constitution was 
the supreme law of the land it was their duty to declare an 
act of Congress void if it was not within the limits of power 
assigned to the national government. 20 

.Taney. -thought that the Supreme Court ^was singularly 
fitted to act as arbiter in cases involving disagreements over 
the^diyision of powers between the two sovereignties. He 

It was not left to congress to create it by law; for the States could 
hardly be expected to confide in the impartiality of a tribunal 
created exclusively by the general government, without any par- 
ticipation on their part. And as the performance of its duty would 
sometimes come in conflict with individual ambition or interests, 
and powerful political combinations, an act of congress establishing 
such a tribunal might be repealed in order to establish another 
more subservient to the predominant political influences of excited 
passions of the day. TJbisjriJiunalj therefore, was erected and the 
powers of which we have spoken conferred uporTltpnoFljjnElie 
federal ^government, but by tne people of the States, who formed 
and adopted that government, and conferred upon it all the powers 
. . . which it now possesses. ... So long, therefore, as this con- 
stitution shall endure, this tribunal must exist with it, deciding in_ 
the peaceful forms of judicial proceeding the angry and irritating 
con tFoTEtsies"b r ef ween sovereignties, 'Which in" other countries Have 
been x determined by the arbitrament of force. 21 " 

This is Taney's view of the Supreme Court as an impartial 
arbiter, acting as the agent of the sovereign people, maintain- 
ing the division of powers between two sovereignties existing 
in the same country. 22 Such an authority was logically neces- 

20 Ibid.) 520. ^ Ibid. t 521. 

23 Contrast with the States' rights view as expressed by Abel P. Upshur. Speak- 
ing of cases before the federal courts he said, "If the decision should be against 


sary to the believer In divided sovereignty. Taney's discussion 
of the Court in this capacity is similar to the opinion ex- 
pressed by Madison when the Constitution was before the 
people for ratification. In the Federalist he wrote: 

It is true, that in controversies relating to the boundary between 
the two jurisdictions, the tribunal which is ultimately to decide, is 
to be established under the General Government. But this does 
not change the principle of the case. The decision is to be im- 
partially made, according to the rules of the Constitution; and all 
the usual and most effectual precautions are taken to secure this 
impartiality. Some such tribunal is clearly essential to prevent an 
appeal to the sword, and a dissolution of the compact; and that it 
ought to be established under the General, rather than under the 
local Governments . . . is a position not likely to be combated. 23 

The Constitution as the Supreme Law 

In Taney's system a State government and the national gov- 
ernment are each supreme in its own sphere, and their powers 
are distinct, but the relation between the two is not the rela- 
tion of separate nations to each other. "For all the great 
purposes for which the federal government was formed, we 
are one people, with one common country." 2 * ^J Consti- 
tution is the supreme law for both State and f ederal govern- 
zJGfint. "TheHCJonsTir^^ is as much a 

part of the law of Pennsylvania as its own Constitution, and 

the citizen, his only relief is by an appeal to his own State. He is under no 
obligation to submit to federal decisions at all, except so far only as his own 
State has commanded him to do so; and he has, therefore, a perfect right to ask 
his State whether her commands extend to the particular case or not. . . . His 
State may Interpose in his favor or not, as she may think proper. If ... she 
does, then it is no longer a judicial question. The question is then between new 
parties . . . between a sovereign State and its own agent; between a State and 
the United States. As between these parties the federal tribunals have no jurisdic- 
tion, there is no longer a common umpire to whom the controversy can be re- 
ferred." A Brief Enquiry into the True Nature and Character of Our Federal 
Government, pp. 86-87 (1863). Originally published in 1840. 

^Number 38, The Foederalist, p. 265. 

^Passenger Cases, 7 Howard, 492 (1848). Dissenting opinion. 


the laws passed by the General Government pursuant to the 
Constitution are as obligatory upon the courts of the States 
as upon those of the United States 5 and they are equally 
bound to respect and uphold the acts and process of the courts 
of the United States, when acting within the scope of its 
legitimate authority." 25 The sovereign people have simply 
divided the powers of government into two great sections and 
delegated them to their agents in the manner prescribed in 
the Constitution. 26 By this division certain powers were given 
to the federal government, and all others were reserved by 
the States. 

Taney believed that the relation between the States and 
the national government should be one of cooperation. The 
States possessed powers which might be used to embarrass the 
national government but the good sense of the people would 
prevent the pursuit of such a policy. If the national and State 
governments should ever embark on a contest of "trying 
which shall do the other the most harm" it would mark the 
end of the Union. "The Union cannot be preserved by the 
mere strength and power of the federal government. It is 
dissolved as soon as it shall forfeit the affection and confidence 
of the states." 27 

In his decision in the case of Ableman v. Eooth^ Taney 
called attention to the fact that the Constitution was not 
forced on the States. Each State entered the Union by a 
purely voluntary act of its people. And he said, "Nor can it 
be inconsistent with the dignity of a sovereign State to observe 
faithfully, and in the spirit of sincerity and truth, the compact 
into which it voluntarily entered when it became a State of 
this Union. On the contrary, the highest honor of sov- 

25 Taylor et aL v. Carryl, 20 Howard, 605 (1857). Dissenting opinion. 
20 Fleming et aL v. Page, 9 Howard, 617-18 (1849). 

27 From the argument of Taney and Reverdy Johnson, counsel for Maryland, 
in Brown v, Maryland, 12 Wheaton, 4.19 (1827). 

28 21 Howard, 506 (1858). 


ereignty is untarnished faith." 29 Then he added a statement 
of vital significance: "And certainly no faith could be more 
deliberately and solemnly pledged than that which every 
State has plighted to the other States to support the constitu- 
tion as it is, in all its provisions, until they shall be altered 
in the manner which the constitution itself prescribes." 30 If 
this was the correct theory of the Union there could be no 
nullification or secession by a State unless it broke faith with 
the other States with which it was joined in the Union. Every 
provision of the Constitution was binding on every State until 
changed by the regular method of constitutional amendment. 

Taney did not belong to the States* Rights School 

In looking for connections between Taney's conception of the 
nature of the Union and the theories of other political leaders 
who preceded him or were his contemporaries^ one does not 
have to go far to discover that he did not belong to the States 3 
rights school of Jefferson and John Taylor. Jefferson wrote in 
the Kentucky Resolutions that the Constitution of the United 
States was a compact and "as in all other cases a compact 
among powers having no common judge, each state has an 
equal right to judge for itself, as well as of infractions as of 
the mode and measure of redress." 31 And John Taylor in a 
discussion of the Union under the Constitution wrote, "But 

^Compare with Vattel, The Law of Nations, p. 18, Sec. 10, "In short, several 
sovereign and independent states may unite themselves together by a perpetual 
confederacy, without each in particular ceasing to be a perfect state. ... A person 
does not cease to be free and independent, when he is obliged to fulfil the en- 
gagements into which he has very willingly entered." 

80 21 Howard, 525. 

31 The Writings of Thomas Jefferson, VII, 292. It should be remembered that 
Jefferson was not as radical in action as he was in theory. This is illustrated in a 
letter which he wrote to John Taylor after Taylor had hinted at the secession of 
Virginia and North Carolina. In his letter Jefferson said, "But if on a temporary 
superiority of one party, the other is to resort to a scission of the Union, no fed- 
eral government can ever exist. ... A little patience, and we shall see the reign 
of witches pass over . . . and the people recovering their true sight, restoring 
their government to its true principles." June I, 1798, in ibtd* 9 pp. 


the union possesses no innate sovereignty, like the states ; it 
was not self-constituted 3 it is conventional, and of course 
subordinate to the sovereignties by which it was formed." 32 

Jeffersonian theory is thus seen to assign to the national 
government a position definitely subordinate to that of the 
States. One should not forget that Taney was a leader of the 
Federalists in Maryland in the period when the Republican 
party was Jefferson's, or that he broke with the New England 
leaders of his own party when they enunciated nullification 
doctrines and hinted at secession in the closing days of the 
War of 1812. In comparison with the Jeffersonians and the 
Hartford Federalists, Taney is a nationalist. He maintains 
the independence of the national government, the authority 
of the Supreme Court to interpret national laws, and the 
permanence of the constitutional Union. 33 

There is no place in Taney's scheme for nullification or 
secession. He considers the State and national constitutions 
*as resting on the same basis, and the State and national gov- ' 
ernments as entitled to the same respect. Sovejeigntj/^rests 
in the pjeople, who act in one capacity as members of the 
political body called the State and in another csLp^SEy^s^SSm^ 
bers of the larger political body,, ,& 

State and national governments operate over a common ter- 
ritory, but for separate and distinct purposes. 35 In his de- 
cisions he sought to maintain intact the sphere of power which 
constitutionally belonged to each sovereignty. 

Among the States 5 rights leaders who were Taney's con- 
temporaries, John C. Calhoun was the outstanding political 
thinker. When his ideas are contrasted with Taney's, points 
of sharp disagreement are easily noticeable. It seemed to 
Calhoun that sovereignty could not be divided. "Sovereignty 

32 New Views of the Constitution of the United States, p. 37. 

33 Notably In Ableman v. Sooth) 21 Howard, 506 (1858). 

34 See Dred Scott v. Sandford, 19 Howard, 393 (1856). 
** Ableman v. Booth, 21 Howard, 516 (1858). 


is an entire thing, to divide, is, to destroy it." 36 He found 
it in the American system residing "unimpaired in the people 
of the several states. . . ." 3T The several States in their 
sovereign capacity, having ratified the Constitution by mutual 
agreement, stand in relation to it as the parties to a constitu- 
tional compact. As parties to the compact they retain the 
right to judge the extent of the obligations imposed by the 
compact, and may interpose to arrest within their respective 
limits an act of the federal government in violation of the 
Constitution and thus to prevent the delegated from en- 
croaching on the reserved powers. 38 Calhoun argued that 
there is nothing in the Constitution to indicate that the Su- 
preme Court is authorized to enforce its judgments against a 
State government in case of a conflict between State and 
national powers. 39 

Calhoun's successors to southern leadership followed him 
in the main outlines of their thinking. 40 Taney differs from 
them, as from Calhoun, in regard to the completeness of State 
sovereignty, and in regard to the method of maintaining the 
division between the powers of the national and State govern- 

The Antecedents of Taney's Theory 

In looking for the antecedents of Taney's theory of the nature 
of the Union we find that his ideas are very similar to those 
advanced by James Madison in number thirty-eight of the 
Federalist papers. The Federalist explained that the Union 
is partly federal and partly national. Ratification of the Con- 
stitution was to be by the people acting "not as individuals 
composing one entire Nation, but as composing the distinct 

86 The Works of John C. Calhoun, I, 146. ^ Ibid., p. 147. 

38 Ibid., pp. 277-78. "Ibid., pp. 258-65. 

40 See A. H. Stephens, A, Constitutional View of the Late War between the 
States, Vol. Ij Jefferson Davis, The Rise and Fall of the Confederate Government; 
Vol. I. 


and independent States to which they respectively belong." 41 
In ratifying the Constitution each State acts as a sovereign 
body and is bound only by its own voluntary act. In this re- 
spect the government is federal, but the new government 
operates on the people rather than on the States, and in that 
respect it is national. 42 The power of the general govern- 
ment is limited to certain enumerated objects, and the States 
are left a residuary sovereignty over all other matters. 43 

That Madison's theory of the Union was almost exactly 
the same as Taney's seems indicated by opinions expressed in 
a letter which he wrote to Edward Everett in 1830. In the 
course of his letter, after discussing the formation of the 
Federal Constitution, Madison said: 

Being thus derived from the same source as the Constitutions 
of the States, it has within each State, the same authority as the 
Constitution of the State; and is as much a Constitution, in the 
strict sense of the term, within its prescribed sphere, as the Consti- 
tutions of the States are within their respective spheres; but with 
this obvious & essential difference, that being a compact among the 
States in their highest sovereign capacity, and constituting the 
people thereof one people for certain purposes, it cannot be altered 
or annulled at the will of the States individually, as the Constitu- 
tion of a State may be at its individual will. 44 

Some of the ideas stated by James Wilson in the Pennsyl- 
vania convention which ratified the Constitution also bear a 
similarity to those later expressed by Taney. Wilson said 
that the proposed general government would take away 
power from the States in certain particulars, but that this 
should not prove alarming since the people are the source of 
all power. They can give one portion of power to the State 
governments and another to the government of the United 

^The Foederalist, p. 262. 42 Ibid., p. 264. * Ibid., p. 265. 

** The Writings of James Madison^ IX, 386-87. President Monroe expressed 
similar ideas in his veto message of May 4, 1822. Richardson, II, 147-48. 


States. 45 In regard to the possibility of disputes between the 
States and the national government over the boundary lines 
of power he said, "I hope, sir, they will not . . . resemble 
comets in conflicting orbits, mutually operating destruction 5 
but that their motion will be better represented by that of 
the planetary system, where each part moves harmoniously 
within its proper sphere, and no injury arises by interference 
or opposition. Every part, I trust, will be considered as a 
part of the United States." 46 

In the course of the discussion of Taney's theory we have 
already noticed that there is a likeness between his ideas and 
those of John Marshall. In the broad outlines of their the- 
ory of the nature of the Union there is much similarity. 
However, Marshall did not always use the term sovereignty 
in the same sense in which Taney used it, and it is doubtful 
if he had quite the clear conception of two sovereign bodies 
of people that Taney had. When Taney^ speaks, of , the State 
as being sovereign he always means the 'people of the State, 
not its government. When he refers to the sovereignty of 
the nation he is thinking of the whole people. That Mar- 
shall had something of this idea might be implied from his 
statement in Sturges v. Crowninshield, referring to the powers 
of the States, "These powers proceed, not from the people 
of America, but from the people of the several States 5 and 
remain, after the adoption of the constitution, what they were 
before, except so far as they may be abridged by that instru- 
ment." 47 E^^^^^g the same term of Court we jind 
him in, M^Cullo&h v. MwyUnd talJaagf 'of sovereignty in 
terms of the powers of governments, and arguing that the 
Constitutioa^TOS^lEe product "of ffiFEep^eiTanJ^nSt of the 
State governments, 48 a proposition which the leading thinkers 

^Elliott, op. cit., II, 443-44- ^/^-/PP- 4$*-^ : m 4 WRfSterirrT9T T <T^l"g): 
48 After telling of the ratification by State conventions he says, "But the meas- 
ures they adopt do not on that account, cease to be the measures of the people 
themselves, or become the measures of the State governments." 4 Wheaton, 403. 


among the most radical of tlie State J rights leaders would 

not deny. 

Mr. Justice Story,, in his Comm&n&aries on the Constitu- 
tlon y distinguishes between the different uses of the term sov- 
ereignty and says, "Strictly speaking^ L& our republican forms 
of government the absolute sovereignty of the nation is in the 
people of the nation 5 and the residuary sovereignty of each 
State, not granted to any of its public functionaries, is in the 
people of the State." 49 This would &eem to indicate that his 
conception of the location of sovereign ty in the United States 
was very much the same as the theory which Taney wrote 
into his decisions. 

It is evident that the roots of Tansy's theory of the nature 
of the Union lie, not in the theory of Jefferson or Taylor or 
Calhoun, but in the -writings of Madison, the ideas of James 
Wilson, and the previous decisions of the Supreme Court. In 
an age of conflict between States 5 rights advocates and the 
advocates of a new nationalism, when the bifurcate theory of 
sovereignty was becoming- progressiwely harder to apply, 
Taney clung to the doctrine of the Fathers of the Constitu- 

The Power of the National 

A discussion of Taney's conception o:f the Union and the di- 
vision of sovereignty in the United States is not complete 
without some notice of the leading cases in which he applied 
his theory. His decisions in. cases imrolving specific powers 
of the national and State governments are as revealing of his 
theory as are his general statements, It is only after an 
examination of such decisions that ome can satisfactorily com- 
pare him with John Marshall or tl& other great jurists who 
have dealt significantly with the satnae problem. 

Where the power of the national, government was in ques- 

49 Sec. 208. 


tion Taney gave it such an ample interpretation and such 
freedom from all except clearly constitutional restraints as to 
give him good claim to be called a nationalist. An important 
decision of this nature was the one which he wrote in the case 
of Holmes v. Jennlson^ a case involving the intercourse be- 
tween the United States and foreign nations. In it he said, 
"It was one of the main objects of the constitution to make 
us, so far as regarded our foreign relations, one people, and 
one nation, and to cut off all communications between foreign 
governments and the several state authorities." 51 He denied 
the right of a State to extradite a person to a foreign nation, 
with the assertion that "The constitution looked to the essence 
and substance of things, and not to mere form." 52 He as- 
signed exclusive power in such matters to the national govern- 
ment, saying: 

But if there was no prohibition to the states, yet the exercise of 
such a power on their part is inconsistent with the power upon the 
same subject conferred on the United States. It is admitted, that 
an affirmative grant of a power to the general government, is not, 
of itself, a prohibition of the same power to the states; and that 
there are subjects over which the federal and state governments 
exercise concurrent jurisdiction. But where an authority is 
granted to the Union, to which a similar authority in the states 
would be absolutely and totally contradictory and repugnant, there 
the authority to the federal government is necessarily exclusive; 
and the same power cannot be constitutionally exercised by the 
states. 53 

In this decision Taney assumes that the national govern- 
ment has exclusive power and the States are deprived of 
power by implication wherever State action would be incom- 
patible with a grant of power to the national government. 
Chief Justice Marshall laid down a similar rule in Stwges v. 

50 14 Peters, $40 (1840). n Ibid., 575- 

52 Ibid., 573- */*., 574- 


Crowninshieldy a case involving bankruptcy laws, when he 
said, "Whenever the terms in which a power is granted to con- 
gress, or the nature of the power, require that it should be 
exercised exclusively by congress, the subject is as completely 
taken from the state legislatures, as if they had been ex- 
pressly forbidden to act on it." 54 

Taney's decision in Holmes v. Jennison strengthened the 
national government and set limits to State power to such an 
extent that James Buchanan said of it, "I have always enter- 
tained the highest respect for the present distinguished Chief 
Justice of the United States j but I must say, and I am sorry 
in my very heart to say it, that some portions of his opinion, 
in this case, are latitudinous and centralizing, beyond any- 
thing I have ever read in any other judicial opinion." 55 

Taney believed that the central government not only had 
certain powers delegated "to it, but that it " hacf the" "right to" 
execute these powers, by force if necessary". In]sjj.MAman m 
v. 50o/Ajiecision he strongly defended the right of the cen- 
tral government enforce its laws and judicial processes free 
from State interference. If a State attempted to interfere 
with the action of a federal officer in holding in custody per- 
sons accused of violating federal laws it would be the officer's 
duty "to call to his aid any force that might be necessary to 
maintain the authority of law against illegal interference." 56 
In his scheme of things the national government need brook 
no interference with the exercise of its constitutionally 
granted powers. 57 

Taney's nationalistic proclivities are revealed most clearly 

^4 Wheaton, 193 (1819). The Court applied a similar rule to interstate com- 
merce in Cooley v. Board of Wardens of the Port, 12 Howard, 319 (1851). 
Although Taney did not write the decision in the latter case he was apparently one 
of the majority whose opinion it represented. 

55 Congressional Globe, 27th Cong., 2d Sess., Appendix, p. 388. 

50 21 Howard, 524 (1858). 

67 See also Official Opinions of the Attorneys General, II (1825-1835), 565, 


in his opinions involving the jurisdiction and authority of the 
federal courts, especially in his opinions in admiralty cases. 
In the case of Taylor v. Carryl 58 involving a conflict of juris- 
diction between State and federal courts, the majority of the 
Supreme Court upheld the right of the State court to assume 
jurisdiction. Taney dissented with a strong defense of the 
supremacy of the federal courts in admiralty cases. After 
admitting that the States are supreme within their sphere of 
action and that national officers are powerless to interfere with 
what they do in that sphere, he continued, "But if it is in- 
tended to say that, in the administration of judicial power, 
the tribunals of the States are to be regarded as the tribunals 
of separate and independent sovereignties, dealing with each 
in this respect upon the principles which govern the comity 
of nations, I cannot assent to it. The Constitution of the 
United States is as much a part of the law of Pennsylvania 
as its own Constitution. . . . The State courts have not, and 
cannot have, any jurisdiction in admiralty and maritime liens, 
to bring them into conflict with the courts of the United 
States." 59 Then he added, "The Constitution and laws of 
the United States confer the entire admiralty and maritime 
jurisdiction expressly upon the courts of the General Govern- 
ment." 60 

One of Taney's most important contributions to American 
law was embodied in his decision "in the case vi&en&s&e Chief 
'v. FitzAugJif 1 in which he interpreted admiralty jurisdiction 
as extending over all navigable waters in the United States, 
whether they were used for commerce between Stales' or" with 
other nations.** 2 " Prior to this decision the boundary of ad- 

58 20 Howard, 583 (1857). Ibid., 605. 

* It>td., 606. 61 1 2 Howard, 443 (1851). 

62 Mr. Justice Brandeis said of this decision, in connection with a discussion 
of the desirability of disregarding the rule of stare decisis, "The existing admiralty 
jurisdiction rests, in large part, upon like action of the Court in The Genesee 
Chief, ... In that case ... a doctrine declared by Mr. Justice Story with the 


miralty jurisdiction had been measured by the tidewater, in 
accordance with established English law. 

Referring especially to the Great Lakes, and in answer to 
the objection that they were not under maritime jurisdiction 
because there was no tide on them, Taney said: 

Now there is certainly nothing in the ebb and flow of the tide 
that makes the waters peculiarly suitable for admiralty jurisdiction, 
nor anything in the absence of a tide that renders it unfit. If it is 
a public navigable water, on which commerce is carried on be- 
tween different states or nations, the reason for the jurisdiction is 
precisely the same. And if a distinction is made on that account, 
it is merely arbitrary, without any foundation in reason; and, 
indeed, it would seem to be inconsistent with it. 63 

He called attention to the fact that tidewater and naviga- 
ble waters had become synonymous terms in England because 
in that country there are no navigable waters beyond the ebb 
and flow of the tide. Because a similar situation existed in 
the original thirteen States the courts had accepted the Eng- 
lish definition. 64 "The description of a public navigable river 
was substituted for the thing intended to be described." 65 

Taney's Genesee Chief decision was one dictated by sound 
common senseTTt extended" the 'power oF the federal govern- 
ment 'to meet conditions as they existed, in accordance with 
the spirit of the constitutional provision. Charles Warren is 
probably right when he says that "Few decisions had ever 
produced so revolutionary a change in Federal jurisdiction as 
that of The Profellor Genesee Chief v. Fitzhugh . . .," 66 

concurrence of Chief Justice Marshall, and approved by Chancellor Kent, was 
abandoned when found to be erroneous, although it had been acted on for twenty- 
six years." State of Washington v. W. C. Dazoson <? Co., 264 U. S. 238-39 
(1924). Dissenting- opinion. 

63 12 Howard, 454. 

64 Mr. Justice Story applied the tidewater limitation rule in The Steamboat 
Thomas Jefferson, IO Wheaton, 428 (1825). 

65 12 Howard, 455. 

68 Charles Warren, The Supreme Court in United States History, II, 239. 


but the decision was revolutionary in the sense that Taney 
broke the precedent of previous respected decisions of the 
Court and not in the sense that he sanctioned any unconstitu- 
tional acquisition of power by the federal courts. It was a 
nationalizing decision brought on by the changed conditions 
, which resulted from the geographical growth of the country. 

Limitations on Federal Power 

Taney's decisions defining federal power did not always ex- 
pand this power. When the relations between the States and 
the national government were involved, he was as careful to 
enforce the limitations on the power of the national govern- 
ment as he was to protect what he considered the constitu- 
tional sphere of power delegated to it. In the Passenger 
Cases he declared that the national government could not 
take away a reserved power of the States either by treaty or 
by a law of Congress. 67 It is notable, however, that in the 
whole time he was Chief Justice he wrote only one decision 
holding an act of Congress unconstitutional and this did not 
involve the relations between national and State power, but 
the power of the national government over the Territories. 68 
In the case of Kentucky v. Dennlson he made it clear that 
he thought the national government had no right to exercise 
control over a State "in the administration of its internal 
concerns and reserved rights." 69 The suit was brought by 
Kentucky to compel the governor of Ohio to surrender a 
fugitive from justice wanted by Kentucky. Although regard- 
ing the duty of the surrender of the fugitive as absolute, 
Taney held that the national government had no power to 
compel the State to fulfill its obligation in this respect. 70 He 

67 7 Howard, 466 (1848). Dissenting opinion. 

98 The act held unconstitutional was the Missouri Compromise, in Dred Scott v. 
Sandjordj 19 Howard, 393 (1856). 

69 24 Howard, 107 (1860). 

^Taney's decision in this case has become the accepted interpretation of the 
law. J. B. Moore, A Treatise on Extradition and Interstate Rendition, II, 980- 


said, "And we think it clear, that the Federal Government, 
under the Constitution, has no power to impose on a State 
officer, as such, any duty whatever, and compel him to per- 
form it 5 for if it possessed this power, it might . . . impose 
on him duties incompatible with the rank and dignity to 
which he was elevated by the State." 71 

This decision was consistent with Taney's theory of the 
actual sovereignty of the States. It is conceivable that a 
judge without his clear conception of the relative independ- 
ence of a State might have issued a writ of mandamus, assum- 
ing that since the State's duty was prescribed, the power of 
enforcement might be implied. But in Taney's theory of the 
two sovereignties, in the absence of a specific constitutional 
provision, the agencies of the national government would 
have no more power to force a course of action on a State, 
where relations of State and nation were not involved, than a 
State would have to force a course of action on the national 

Neither did he believe that the national government could 
do by indirection what it might not do directly. During the 
administration of President Jackson, when it was proposed to 
distribute the surplus money in the federal treasury among 
the States, Taney expressed his disapproval of such a step. In 
the first place, he thought Congress could not rightfully raise 
more money than the needs of the central government re- 
quired. In the second place, he thought that if Congress 
could raise more money than was needed, and distribute it 
among States or corporations, the power of the central gov- 
ernment would be enormously enlarged. The government 
could then apply its moneys indirectly to any purpose that it 
desired to further. 72 

71 24 Howard, 108. 

73 Letter to Jackson, June 27, 1836. Correspondence of Andrew 
V, 410. 


The very thing that Taney warned against has become 
not uncommon in recent times. By means of grants-in-aid the 
federal government now exercises a powerful influence in 
education, road building, and agricultural work. Relief ap- 
propriations, the Reconstruction Finance Corporation, and 
other agencies which have been used to combat the depression 
have added immeasurably to the power of the federal govern- 
ment, and the end is not yet. That Taney would have op- 
posed such roundabout ways of augmenting the power of the 
federal government seems indicated from the opinion referred 
to above. 

The Power of the States 

When one turns to Taney's decisions defining the power of 
the States it becomes evident that he regarded the authority 
of the States as of equal dignity and as equally deserving of 
protection as the authority of the national government. He 
held that no federal power could diminish in any way the 
reserved powers of the States. 73 The States were entitled to 
all of the prerogatives of sovereignty not surrendered to the 
national government. They were immune from suit without 
their own consent, even though they defaulted on their 
bonds. 74 A State could change its form of government at 
will, so long as it maintained a republican form of govern- 
ment as required by the Constitution. 75 It could impose 
whatever taxes it thought proper on persons or things within 
its dominion and apportion them as it thought best. 76 It 
could determine "the status, or domestic and social condition, 
of the persons domiciled within its territory" except so far as 
limited by the federal Constitution. 77 Whether the acts of a 

78 Dissenting opinion in Passenger Cases, j Howard, 4.66 (1848). Official 
Opinions of the Attorneys General, II (1825-1835) 474-77. 

74 Bank of Washington v. State of Arkansas, 20 Howard, 532 (1857). 

75 Luther v. Borden et al., 7 Howard, 47 (1848). 

76 Ohio Life Insurance and Trust Co. v. Debolt, 16 Howard, 428 (1853). 

77 Strader et al, v, Graham, 10 Howard, 93 (1850). 


State were wise or unwise, just or unjust, was solely a matter 
for the consideration of the State. 78 In all questions which 
concerned only a State law or a State constitution the decision 
and construction of the State courts was final. Federal courts 
would accept such decisions as authoritative from the time 
that they were made. 79 

It is in his police power decisions that Taney contributed 
most to the constitutional interpretation of State powers. 
These decisions are so important as to require treatment in 
separate chapters. In them, as well as in some of the in- 
stances briefly mentioned above, Taney seems to depart from 
the nationalistic traditions of John Marshall's Court. He 
conceives of State sovereignty as having a vigor and complete- 
ness different from that in Marshall's conception, or in 
Story's. In a sense he is a strong defender of State's rights. 
But an analysis of his decisions shows that he did not take 
away power from the national government so much as he 
added to the power of the States. 

The difference between the interpretations of Marshall 
and Taney is illustrated in the case of Prigg v. Pennsyl- 
vania, 80 where the Court held unanimously that State authori- 
ties could not interfere with the Fugitive Slave Law of the 
national government, Mr. Justice Story writing the decision 
of the Court held that the power of Congress on the subject 
was exclusive. Chief Justice Taney, agreeing that no State 
could interfere with the federal law, dissented from the prop- 
osition that a State law aiding the federal authorities would 
be unconstitutional. The difference is also illustrated in three 
important cases which were decided by the Court during 
Taney's first term as Chief Justice, namely City of New York 
v. Miln^ Briscoe v. Bank of the Commonwealth of Ken- 

78 Ohio Lije Insurance and Trust Co. v. Debolt, 16 Howard, 428 (1853). 

79 Luther v. Borden et al. } J Howard, 4.0 (1848); Rowan et al. v. Runnels, 5 
Howard, 139 (1846). 

80 16 Peters, 539 (1842). ffl n Peters, 102 (1837). 


tucky*~ and Charles River Bridge v. Warren Bridget In 
each of these cases the power of the States was construed 
liberally, with Taney in the majority and Story dissenting. 
The question at issue in each instance was not a limitation on 
national power, but the extent of State power under the Con- 
stitution, in one case to discourage an influx of pauper immi- 
grants a in another to allow a State owned bank to issue bills 
of credit^ and in the Charles River Bridge case to allow com- 
petition with a chartered company. 


Taj]y!sj^ Union is consistent with 

his general theory of sovereignty. Believing in the highly 
sovereign power of the people as their will is constitutionally 
established, he sought to allow free expression to their will 
whether in the delegated powers of the national government 
or in the reserved powers of the States. Considered as a 
grant of power to the national government he construed the 
Constitution liberally j considered as a limitation on the power 
of the States he construed it strictly. Both governments he 
regarded as the agents of the people, entitled to equal respect, 
and to equal protection in the exercise of their constitution- 
granted functions. 

83 ii Peters, 257 (1837). ffl 1 1 Peters, 420 (1837). 



The American Conce-ption of Police Power 

As A RESULT of the division of the powers of government in 
the United States a concept of police power has developed 
which is peculiar to American jurisprudence. 1 The term 
"police power" is commonly used to denote the power exer- 
cised by a legislature in restraining and limiting individual 
rights and actions for the public good. 2 The law of the police 
power is in a constant state of development because it deals 
with the individual in relation to his social and economic 
environment., which is continually changing. 3 It has come to 
occupy an increasingly important place in American law in 
modern times. 

In the development of the American idea of police power 
Chief Justice Taney played an important part in a period 
when the whole doctrine was in its infancy. His decisions are 
of strategic importance because they helped to bridge the gap 
between the English theory of the sovereignty of Parliament 
and the modern American conception of the police power. In 
the early decisions of the Supreme Court where the expres- 
sion "police power 37 appears ? it is used as a term referring to 
the reserved sovereign powers of the States, and not as desig- 
nating a particular branch of the State's authority. 4 During 
the time that Taney was Chief Justice the term was in the 
process of being narrowed down to mean particularly the 
power of the State to legislate for the protection of the 

1 W. W. Willoughby, The Constitutional Law of the United States , III, 1765. 
3 Ernst Freund, The Police Power } pp. 3, 17. See also Willoug-hby, op. cit., p. 
1774; and T. M- Cooley, Constitutional Limitations, 7th ed., p. 829. 

8 Freund, op. cit., p. 3. * Willoughby, op. cit. } p. 1766. 


morals, safety, and general welfare of its inhabitants even 
though interstate commerce or some other subject of federal 
legislation might be incidentally affected. 5 

The general notion that the government has power to 
limit the rights and property of individuals for the social wel- 
fare is, of course, a very old one perhaps almost as old as 
government itself. In England this power was exercised by 
Parliament and Parliament was supreme. In Sir William 
Blackstone's Commentaries on the Laws of England he sum- 
marizes and discusses the laws which deal with "public po- 
lice." After discussing laws prohibiting unfair trade prac- 
tices, 6 he devotes a chapter to "Offences against the Public 
Health and the Public Police and Oeconomy." 7 In the latter 
chapter he lists quarantine laws, laws against selling unwhole- 
some provisions, laws against clandestine marriages, bigamy, 
common nuisances, idleness, luxury, gambling 5 statutes to 
preserve game and statutes for keeping gypsies out of the 
country. Some of the law on these subjects was a develop- 
ment of the Common Law, but in most cases Parliament had 
dealt with them by statutes. The power of Parliament to 
enact social legislation was not constitutionally limited. 

Three things prevented the complete incorporation of the 
English doctrine into American law. In the first place, in 
the American system the powers of government were divided 
between the States and the nation. In the second place, there 
was a written constitution which limited the powers of both. 
Related to these factors, and of equal importance., was the 
interpretation given to the Constitution by the Supreme Court 
in the formative years when the Constitution was first being 
put into service. The Court in those days was very tender 
of private property rights and noticeably interested in 

5 See ibid., pp. 1766-77. 

6 Book 4, Chap. 12, pp. 154-60. 

7 Book 4, Chap. 13, pp. 161-75. 


strengthening the power of the national government. 8 In 
the United States there could be no such thing as the sov- 
ereignty of a legislature in matters of public welfare. 

In the American system all of the powers of government 
not surrendered to the national government were regarded 
as having been reserved by the States. 9 It was generally 
conceded that power to make police regulations in purely 
internal affairs, except where the obligation of contracts was 
involved, was reserved to the State governments. In 1827, 
Taney and Reverdy Johnson in presenting a case before the 
Supreme Court based an argument on the assumption that 
the States had power to protect the public safety by regulat- 
ing the handling of gunpowder in a crowded city, or to pro- 
tect the public health by regulating the sale of articles dan- 
gerous or offensive to the public. 10 The Court speaking 
through John Marshall accepted the validity of the assump- 
tion without question. 11 Thus far there was no disagreement, 
at least on the surface. Grounds for disagreement were 
found mainly at two points of constitutional law 5 first, as to 
how far the States could go in police legislation which affected 
interstate or foreign commerce either directly or indirectly ; 
second, as to how far the States could exercise their police 
power without impairing the obligation of contracts. 

The Court under John Marshall established the doctrine 
that "Inspection laws, quarantine laws, health laws ... as 

8 E. S. Corwln, op. cit., p. 113; W. D. Coles, "Politics and the Supreme Court 
of the United States," The American Law Review, XXVII (1893), 182-208. 

9 Number 38 (Madison) in The Foederalist, p. 265. 

Sturges v. Crowninshield, 4 Wheaton, 193 (1819); The Idea Is well put in a 
later case, Munn v. Illinois, 94 U. S. 124 (1876). 

10 Brown et al. v. The State of Maryland, 12 Wheaton, 427-28. 

11 "The power to direct the removal of gunpowder is a branch of the police 
power, which unquestionably remains, and ought to remain with the State. . . . 
We are not sure that this may not be classed among inspection laws. The removal 
or destruction of infectious or unsound articles is undoubtedly, an exercise of that 
power, and forms an express exception to the prohibition we are considering." 
Ibid., 443-44- 


well as laws for regulating the internal commerce of a state" 
were part of the reserved powers of the States 12 and laws of 
this nature could be enacted, unless they came into conflict 
with the authority of Congress over interstate or foreign 
commerce. The Court held that "congress may control the 
state laws, so far as it may be necessary to control them, for 
the regulation of commerce." 13 In Brown V. Maryland 14 
the principle was established that a State cannot under the 
guise of the police power, or otherwise, levy any tax which 
may be construed as a tax on the importation of goods. The 
States were not to be allowed by taxation or otherwise to 
retard, burden, or in any way control, the laws of Congress 
constitutionally enacted. 15 When a State authorized the 
damming up of a small creek in order to enhance property 
values and protect the health of the citizens in its vicinity, 
Marshall held the State law constitutional on the ground that 
it was not repugnant to the federal power to regulate com- 
merce in a dormant state or contrary to any law passed on 
the subject. But he hastened to emphasize that Congress had 
power to control even such small streams under its commerce 
power. 16 The police power of the States emerges from the 
first period of the Supreme Court definitely subordinated to 
the commerce power of the national government. 

The Court in this period was equally solicitous in protect- 
ing the obligation of contracts against State legislation. Mar- 
shall held that the right to contract, and the obligation of 
contract, were not given by human legislation but were 
natural rights of man. 17 The Court under his leadership 
were zealous to protect these rights. They established the 

12 Gibbons v. Ogden, 9 Wheaton, 203 (1824.). 
*/&</., 206. 

14 12 Wheaton, 4.19 (1827). 

15 McCulloch v. Maryland, 4 Wheaton, 436 (1819). 

^Willson v. Blackbird Creek Marsh Co., 2. Peters, 250-52 (1829). 
17 Ogden v. SaunderS; 12 Wheaton, 346 (1827). 


principle that a State could not release a party to a contract 
from any part of his obligation/ 8 but they went even farther 
than that. In the Dartmouth College case Marshall held 
that a charter from the State to an individual or a group of 
individuals was a contract and could never be altered by the 
State. 19 On another occasion the Court held that when a 
contract of tax exemption is written into a charter it can never 
be withdrawn. 20 It will readily be seen that the police power 
of the States might be seriously circumscribed by these prin- 
ciples unless they should be modified by later decisions. 

By the time of Taney's appointment to the Court the 
growth of the nation and the increasing number of corpora- 
tions made some sort of modification imperative for the gen- 
eral welfare. Taney led the Court in a swing away from the 
strictest protection of contract property rights toward a new 
emphasis on the welfare of the community. 21 

Police Power in Conflict with Chartered Privileges 

In the first term of Court after Taney became Chief Justice 
a case came up for decision in which the contract rights of a 
corporation clashed with the public interest. 22 The suit was 
between two bridge companies. In 1785, the legislature of 
Massachusetts had incorporated a company and authorized it 
to build the "Charles River Bridge" and collect tolls for its 
use. In 1828, the legislature incorporated another company 
called "The Proprietors of the Warren Bridge" and author- 
ized it to build another bridge within a few rods of the 
Charles River Bridge. By the terms of this second charter 
the Warren Bridge was to be surrendered to the State as 
soon as the tolls received had reimbursed the owners for 

18 Sturges v. Crozvninshield, 4 Wheaton, 197 (1819). 

Dartmouth College v. Woodzuard, 4 Wheaton, 625 (1819). 

20 New Jersey v. Wilson, 7 Cranch, 164 (1812). 

21 See Charles Warren, The Supreme Court in United. States History) II, 34-35. 
^Charles River Bridge v. Warren Bridge, n Peters, 420 (1837). 


building and maintaining it, or at any rate within six years 
after they had begun to receive tolls. The Charles River 
Bridge Company sought to enjoin construction of the new 
bridge on the ground that it impaired the obligation of their 
contract with the State. 

The immediate question before the Court was, does the 
grant of a charter to a corporation to build a toll bridge con- 
tain an implied contract that the State will not erect a free 
bridge nearby during the life of the charter? The larger 
issue may be stated in the words of the opposing attorneys. 
John Davis, counsel for the defendants said: 

On one side, then are the rights to private property, sacred and 
inviolable, so far as they can be established 5 but claimed in the 
form of a burdensome tax on the public, and therefore entitled to 
no favor beyond strict right. 

On the other side stands the public, complaining that they are 
tributaries to this great stock of private wealth and subjected to 
inconveniences still more burdensome from the want of suitable 
accomodations for intercommunication across the river, if this 
bridge is to be shut up; and denying that such claims of exclusive 
right can be justly or lawfully set up by the plaintiffs. 23 

Said Daniel Webster,, counsel for the plaintiffs, "The pro- 
motion of public accomodation is no reason for taking away a 
privilege held under a legal grant. . . . The income derived 
from these rights shall not be diminished." 24 He contended 
that it was a question of the fair construction of a contract. 

Coming at a time when the country was growing rapidly 
and methods of transportation were constantly being im- 
proved and routes extended, the case assumed particular im- 
mediate importance. And the general principle of the con- 
struction of corporation charters was of great importance for 
the future as well. 

Chief Justice Taney delivered the Court's decision. Be- 

23 ii Peters, 4.75. * Ibid., 529. 


fore considering the doctrine which it enunciated, it may be 
well to notice Taney's theory of the purpose of public utility 
corporations. In 1832, as Attorney General, speaking of 
another bridge company he said, "Certain privileges are given 
to them, in order to obtain a public convenience 3 and the in- 
terest of the public must, I presume, always be regarded as 
the main object of every charter for a toll-bridge or a turn- 
pike road. The exclusive privileges are not given to the 
corporators merely for individual emolument, or from fa- 
voritism, but are granted as a compensation for the public 
convenience derived, from the work done by them, and are 
offered in the charter as inducements to individuals to under- 
take it. 5 ' 25 Mr. Justice Brandeis expressed a similar idea in 
1923 when he said in a public utility case, "The investor 
agrees, by embarking capital in a utility, that its charges to the 
public shall be reasonable. His company is the substitute for 
the State in the performance of the public service j thus be- 
coming a public servant. 3 ' 26 

In approaching a question such as that involved in the 
Charles River Bridge Case, Taney thought in terms of the 
public welfare, whereas Marshall or Webster would have 
thought in terms of private property rights. 27 According to 
Taney's theory the corporation existed to serve the people, 
and not the government to serve the corporation. To him 
the granting of a charter to a corporation did not create for 
it any right, either God-given or constitutional, to make 
money indefinitely at the expense of the public. The charter 
was granted by the government for the benefit of the public. 
The government would faithfully observe its provisions, but 
could not be expected to do more. The keynote of his de- 

25 Official Opinions of the Attorneys General, II, 514. 

26 Dissenting opinion in Southwestern Bell Telephone Co. v. Public Service 
Commission, 262 U. S. 290-91 (1922). 

27 See Charles Warren, The Supreme Court in United States History, II, 34-35 
and V. L. Parrington, Main Currents in American Thought, II, 23. 


cision in the Charles River Bridge Case is to be found in the 
statement., "But the object and end of all government is to 
promote the happiness and prosperity of the community by 
which it is established ; and it can never be assumed, that the 
government intended to diminish its power of accomplishing 
the end for which it was created." 28 Taney did not think of 
government as a mechanical arrangement which men endured 
because they must. It was a social organization for the pro- 
motion of human welfare. He did not think in terms of 
natural rights of individuals, but in terms of "the happiness 
and prosperity 57 of the community. 

Concerning the principles of construction to be applied in 
the Charles River Bridge Case Taney said: 

The court think there can be no serious difficulty on that head. 
It is the grant of certain franchises by the public to a private 
corporation, and In a matter where the public interest is concerned. 
The rule of construction In such cases Is well settled, both in Eng- 
land, and by the decisions of our own tribunals. In ... the case 
of the proprietors of the Stourbridge Canal v. Wheeley and others, 
the court say: "The canal having been made under an act of 
parliament, the rights of the plaintiffs are derived entirely from 
that act. This ... is a bargain between a company of adven- 
turers and the public . . . and the rule of construction in all such 
cases, is ... that any ambiguity in the terms of the contract, 
must operate against the adventurers, and In favor of the public, 
and the plaintiffs can claim nothing that is not clearly given them 
by the act." . . . 

Borrowing, as we have done our system of jurisprudence 
from the English law; and having adopted, In every other case, 
civil and criminal, Its rules for the construction of statutes; is there 
any thing in our local situation, or In the nature of our political 
institutions, which should lead us to depart from the principle 
where corporations are concerned? . . . We think not; and it 
would present a singular spectacle, if, while the courts in England 

28 1 1 Peters, 54.7. 


are restraining, within the strictest limits, the spirit of monopoly 
and exclusive privileges in nature of monopolies, and confining 
corporations to the privileges plainly given to them in their charter 5 
the courts of this country should be found enlarging these priv- 
ileges by implication; and construing a statute more unfavorably 
to the public^ and to the rights of the community, than would be 
done in a like case in an English court of justice. 29 

The rule was not so well established in American law as 
Taney's statement would seem to indicate. The Court had 
declared in previous cases that public grants to private in- 
terests were to be strictly construed, 30 but it had never before 
given the rule anything like the stringent interpretation that 
Taney gave it. The last paragraph quoted above from the 
Charles River Bridge decision furnishes a clue to the real 
reasons for the decision. Taney did not believe that the 
courts should give corporations anything by implication when 
the rights o the public were involved. We know from his 
opinions expressed in the war on the Bank that he was very 
critical of corporate monopolies held at the expense of the 
public. What he did in this case was to establish a new rule 
in American law. It was a piece of wise judicial statesman- 
ship, but it cannot claim the sanction of precedent from John 
Marshall's court. 

The Social Importance of Strict Construction of 
Charter Grants 

Taney points out that America is an active and enterprising 
country growing in numbers and in wealth, and daily finding 
necessary new channels of communication for the "comfort, 
convenience, and prosperity of the people." A state ought 
never to be presumed to surrender its power to promote "the 

20 1 1 Peters, 544-46. 

80 Taney cited four cases as precedent: C7. S. v. Arrendondo, 6 Peters, 738 
(1832). Jackson v. Lamphire, 3 Peters, 289 (1830). Beaty v. The Lessee of 
Knowler, 4 Peters, 168 (1830). Providence Bank v. Billings and Pitman, 4 
Peters, 514 (1830). 


happiness and prosperity of the community." Referring to 
the case at hand he continued. 

And when a corporation alleges, that a State has surrendered for 
seventy years, its power of improvement and public accomodation, 
in a great and important line of travel, along which a vast number 
of its citizens must daily pass; the community have a right to insist, 
in the language of this court above quoted, "that its abandonment 
ought not to be presumed, in a case, in which the deliberate pur- 
pose of the State to abandon it does not appear." The continued 
existence of a government would be of no great value, if by 
implications and presumptions, it was disarmed of the powers 
necessary to accomplish the ends of its creation ; and the functions 
it was designed to perform, transferred to the hands of privileged 
corporations. . . . No one will question that the interests of the 
great body of the people of the State, would, in this instance, be 
affected by the surrender of this great line of travel to a single 
corporation, with the right to exact toll, and exclude competition 
for seventy years. While the rights of private property are 
sacredly guarded, we must not forget that the community also 
have rights, and that the happiness and well being of every citizen 
depends on their faithful preservation. 31 

The results of any other than a strict construction of such 
charters might well prove disastrous to internal improve- 
ments, Taney pointed out. The States had encouraged the 
building of turnpike roads, sometimes different ones along 
the same line of travel. Then in some cases railroads were 
built along the same route and the franchise of the turnpike 
company rendered worthless. Now, says Taney: 

Let it once be understood, that such charters carry with them 
these implied contracts, and give this unknown and undefined 
property in a line of travelling; and you will soon find the old 
turnpike corporations awakening from their sleep and calling upon 
this court to put down the improvements which have taken their 
place. The millions of property which have been invested in rafl- 
31 1 1 Peters, 547-48. 


roads and canals, upon lines of travel which have been before 
occupied by turnpike corporations, will be put in jeopardy. We 
shall be thrown back to the improvements of the last century and 
obliged to stand still, until the claims of the old turnpike corpora- 
tions shall be satisfied; and they shall consent to permit these states 
to avail themselves of the lights of modern science, and to partake 
of the benefit of those improvements which are now adding to 
the wealth and prosperity, and the convenience and comfort, of 
every other part of the civilized world. 32 

In this decision, and in his other opinions involving the 
police power, Taney was not merely legalistic in his thinking. 
He was alive to economic and social conditions. He proposes 
to interpret the law as "a vehicle o life," not establish prin- 
ciples that will serve to hold back the nation's continuing 
development. He is a progressive agrarian in his outlook, a 
Jacksonian, who not only lays down progressive principles of 
law, but also views with a jealous eye any attempt of cor- 
porate wealth to hang on to privileges that may be harmful 
to the general welfare. 

The essence of the Charles River Bridge decision is found 
in the following terse statements: 

Does the charter contain such a contract on the part of the State ? 
... If a contract on that subject can be gathered from the 
charter it must be by implication, and cannot be found in the 
words used. Can such an agreement be implied? The rule of 
construction before stated is an answer to the question. In char- 
ters of this description, no rights are taken from the public, or given 
to the corporation, beyond those which the words of the charter, 
by their natural and proper construction, purport to convey. 33 

The Conservative Viewpoint 

In the eyes of the conservatives this decision was rank heresy. 
Justice Story dissented from it with a long and carefully de- 
veloped opinion. To him it was a break away from "the old 

83 ii Peters, 551-53- * Peters, 549. 


law." By its "speculative niceties or novelties" the Court's 
decision endangered the title-deeds of those who held rights 
by public grants. A charter should be construed by the same 
rules as any statute. The Court should seek to find the legis- 
lative intent and give it a a full and liberal operation." 34 
Chancellor Kent roundly condemned Taney's decision and 
commended Story for his dissent. He saw in the decision an 
injury to the moral sense of the community, and he wrote, "I 
abhor the doctrine that the Legislature is not bound by every- 
thing that is necessarily implied in a contract in order to give 
it effect and value." 35 Pessimism prevailed among the 
Tories. The decision of the Court was strong evidence that 
the fierce democrats who now controlled it were going to 
tear down some of the most sacred pillars of the economic 

Justice Story and the other conservatives were afraid that 
the principle established in the Dartmouth College Case 36 
was being overthrown. The principle was that a charter is a 
contract, the property rights of which will be protected by 
the federal courts. In the Charles River Bridge decision 
Taney did not deny the validity of MarshalPs doctrine of 
the contractual nature of charters, but he did lay down a rule 
of construction that would have made the Dartmouth Col- 
lege decision improbable had Marshall followed it. Taney's 
Court did not reverse Marshall's decision but it did restrict 
its efficacy fortunately for the general welfare in the days 
of prolific corporations that lay ahead. 

The Dartmouth College decision gave corporations priv- 
ileges which they had not had under the Common Law. It 
interpreted the "obligation of contracts" clause in a way that 
its framers probably never dreamed that it would be in- 

84 ii Peters, 555. 

^Quoted in Charles Warren, The Supreme Court in United States History, 

II, ZQ. 

80 4 Wheaton, 518 (1819). 


terpreted 37 The doctrine that charters were contracts and 
entitled to constitutional protection was doubtless not a harm- 
ful one if applied with moderation, but if given a generous 
interpretation it would seriously curtail the power of the legis- 
latures. There was danger that the doctrine would be pushed 
much too far by its advocates. 38 Taney checked the develop- 
ment and pruned off its growth. His decision has met with 
the general approval of the bar. 39 

The Significance of the Charles River Bridge Decision 

The Charles River Bridge decision was a Magna Carta in 
American law. One writer has said of Taney, 

It was due to him more than to any other man that the power of 
the States to make internal improvements was retained at a time 
when it was peculiarly necessary that they should have full liberty, 
unrestrained by any constitutional limitations, to sweep away ex- 
crescences and obsolete institutions and build anew works adequate 
to the times and to the future. This power the Chief Justice 
preserved ... in Charles River Bridge */ Warren Bridge . . . 
where he laid down the doctrine that a State in granting a fran- 
chise could not be presumed to have made also an implied contract, 
which in effect would guarantee the value of the franchise. 40 

In giving State legislatures added freedom to regulate cor- 
porations and legislate for the general welfare the decision 
opened the way for the development of effective police power 
legislation. Some of the results may be seen in succeeding 
decisions where it has been cited for support. Mention of a 
few of the cases in which it has been referred to will serve as 
some indication of the nature of our inheritance from the 
principle which Taney established in American law. 

87 "Legislative Control over Railway Charters," American Law Review^ I 
(1867), 451-52- 

38 George W. Biddle, in Constitutional History of the United States as Seen in 
the Development of American Law, pp. 132-33. 

89 lbid.> p. 133. 

40 F. R. Jones, "Roger Brooke Taney," The Green Bag, XIV (1902), 7. 


In Knoxville Water Company v. Knoxville* 1 the Supreme 
Court held that a contract between a city and a water com- 
pany which provided that the city should not enter into any 
agreement with any other person or corporation to get its 
water from them, did not preclude the city from establishing 
its own waterworks. In making its decision the Court quoted 
the rule laid down by Taney in the Charles River Bridge 
Case and reaffirmed it. 42 

In 1907, a federal court held that a city franchise to a 
telephone company setting maximum rates did not bar the 
city from ordering the rates lowered during the life of the 
franchise. The court declared that the power to regulate 
public utility rates falls within the police power of the State, 
and where parties claim its abandonment or suspension the 
rule is that of strict construction laid down in the Charles 
River Bridge Case. 43 State courts have cited the Charles 
River Bridge decision, in upholding the power of a city to 
tax a street railway company for the improvement of the 
streets along which its tracks ran, 44 in requiring a railroad 
company to pay for overhead bridges built by a city over its 
tracks, 45 and in holding that a city might construct its own 
electricity plant even though by so doing it might practically 
ruin the franchise which it had previously granted to a private 
corporation. 46 These applications of Taney's principle, all of 
them since 1 900, are indicative of its importance as an integral 
part of the law of modern public utility regulation. 47 

When Taney wrote his decision the conservatives thought 
41 200 u. s. 22 (1901). "/A*/., 37-38. 

43 Home Telephone & Telegraph Co. v. City of Los Angeles et al. t 155 Fed., 

554, 57> 57* (1907)- 

^Oklahoma City v. Shields, 100 Pac., 559-72 (1908). 

45 St. Louis v. St. Louis & S. F. R. Co., 129 S. W. 691-99 (1910). 

48 Clark v. City of Los Angeles, 116 Pac., 722-25 (1911). 

* T See also State v. St. Paul etc. Ry. Co., 108 N. W. 261-67 (1906)5 Boise City 
v. Boise Artesian Hot and Cold Water Co., 186 Fed., 710 (1911)5 Territory v. 
Long Bell Lumber Co. y 99 Pac., 918 (1908). 


it destructive of the fundamental principles of constitutional 
law, yet Taney and the conservatives were looking at the 
same clause in the Constitution. Their interpretations were 
different because their conceptions of the proper function of 
government were different. If the purpose of government is 
primarily the protection of private property rights, statutes 
which threaten to limit the income from property should be 
enacted only in cases of great necessity. If the purpose of 
government is the promotion of happiness and prosperity of 
the community., legislation which tends toward that end is 
legitimate even though it curtails the dividends of particular 
individuals. Taney took the latter view. His theory of gov- 
ernment left the way clear for legislation made desirable by 
the economic and social changes of his own time and those 
which have come with increasing rapidity In the years since 


The Liberalization of the Judicial Attitude toward 
Police Power Legislation 

TANEY CAME to the Supreme Court in a period of increasing 
social legislation by the States. The public demand for the 
construction of canals and railroads, for free schools, for laws 
dealing with immigrants, for anti-liquor legislation, and for 
the abolition of slavery led to increased activity on the part 
of State legislatures, 1 If the legislatures were to carry out 
the program demanded by the people it was necessary that 
the courts be guided by constitutional theory that would not 
seriously interfere with it. Chief Justice Taney's theory 
would allow the States almost complete power to enact legis- 
lation for the welfare of their citizens. Some of his ideas 
along that line were revealed during the first term of Court 
after he became Chief Justice, as we have already noticed, in 
the Charles River Bridge decision. When Taney came to 
the Court a majority of its members were Jackson appointees 
and most of them were willing to go along with him in writ- 
ing into the law of the Court a liberal interpretation of the 
police power. 

A liberalization was already in process in the State courts. 
A change of atmosphere became noticeable in the twenties 
when the increased popular control of government began to 
make itself felt. In 1826, the New York Supreme Court in 
upholding a city ordinance forbidding the use of certain 
premises as a cemetery, in spite of a previous grant, asserted 
that the city officers had no power "to make a contract which 

1 See E. S. Corwin, "The Doctrine of Due Process of Law Before the Civil 
War," Harvard Law Review, XXIV (1911), 4.60-61. 



should control or embarrass their legislative powers and 
duties." 2 In 1831, another State court upheld the right of a 
city government to fill up a creek as a public health measure, 
even though by so doing they might to some extent interfere 
with private rights without providing for compensation. 3 
Several years later in Commonwealth v. Alger^ Chief Justice 
Shaw of the Massachusetts court declared, "All property in 
this commonwealth ... is derived directly or indirectly 
from the government, and held subject to those general reg- 
ulations, which are necessary to the common good and gen- 
eral welfare." 5 And just a little later in his decision he gave 
his widely quoted definition of the police power, defining it 
as "the power vested in the legislature by the constitution, to 
make, ordain and establish all manner of reasonable laws, 
statutes, and ordinances, either with penalties or without, not 
repugnant to the constitution, as they shall judge to be for 
the good and welfare of the commonwealth, and of the sub- 
jects of the same." In giving a wider scope to the powers of 
the State legislatures, Taney's Court was following a trend 
already begun by the State courts and continued by them until 
the Civil War. 7 

Questions connected with the development of the police 
power sometimes resolved themselves into questions of the 
extent of the legislative power in general. Some of the 
earlier jurists had believed the legislature limited by natural 
law. Justice Chase had said, "There are certain vital prin- 
ciples in our free republican governments, which will de- 
termine and overrule an apparent and flagrant abuse of legis- 

s Brick Presbyterian Church v. the City of Neto York, 5 Cowen, 538-40. 
8 Edmund Baker v. The City of Boston, 12 Pickering-, 184, 194 (Mass.). See 
also Commonwealth v. William Tewksbury, n Metcalf, 55 (Mass. 1846). 

4 7 Gushing, 53 (Mass. 1851). 

5 7 Gushing, 85. * Ibid. 

7 See also Stuyvesant v. The Mayor of New York, 7 Cowen, 588 (N. Y. 1827)5 
Thorpe v. The Rutland and Burlington Railroad Co., 27 Vt., 142 (1854); State v. 
Noyes, 10 Foster, 279 (N. H. 1855). 


lative power. . . . 3?8 And John Marshall had asserted^ "It 
may well be doubted whether the nature of society and of 
government does not prescribe some limits to the legislative 
power j and if any be prescribed, where are they to be found, 
if the property of an individual, fairly and honestly acquired, 
may be seized without compensation." 9 

The courts of the Jacksonian era tended to discard this 
theory and to regard the legislature as supreme except where 
it was limited by either State or national constitution. In 
1856, the Michigan Supreme Court stated that the legislature 
"must possess all the powers of a sovereign state except such 
as are withheld by the state constitution and such as are con- 
ceded to the general government." 10 This theory was the 
one accepted by Chief Justice Cooley 11 and it represents also 
the view of Mr. Justice Holmes. 12 That this was substan- 
tially the theory held by Chief Justice Taney may be gathered 
from the fact that he never refers to natural law as limiting 
the legislature. He does not talk of natural rights. The 
only limitations which he refers to as applying to the State 
legislatures are constitutional ones. In all cases involving 
State legislation he was willing to leave the matter of consti- 
tutionality entirely up to the State courts unless a federal 
question was involved. 

The State's Power over Immigration 

During the same term of the Supreme Court at which the 
Charles River Bridge case was decided a case came up which 
involved the constitutionality of a New York immigration 
law. 13 The New York statute required masters of ships arriv- 

*Calder v. Bull, 3 Dallas, 388 (1798). 

9 Fletcher v. Peck, 6 Cranch, 135 (1810). 

10 People v* Gallagher, 4 Mich., 244. (1854). See also Goddard v. Jackson- 
ville, 15 111., 589 (1854)5 and State v. Noyes, 10 Foster, 279 (N. H. 1855). 

11 Op. clt. } p. 126. 

13 Dissenting opinion In Tyson v. Banton, 273 XL S. 446 (1926). 
13 City of New York v. Miln, n Peters, 102 (1837). 


ing in New York City to report certain information concern- 
ing their passengers to the city officials so that the city could 
take steps to prevent the settlement of immigrants who were 
likely to become paupers. In a decision written by Justice 
Barbour the Court upheld the constitutionality of the law as 
a valid exercise of the police power. Chief Justice Taney was 
one of the majority whose opinion the decision represented. 
The decision held that the law was a regulation not of com- 
merce, but of police. The object was to prevent an inflow of 
foreigners who were likely to become chargeable on the city 
as paupers. The means used was the requirement of a report 
from masters of ships. Both the end and the means were 
within the competency of the States, said the Court. "We 
choose to plant ourselves on what we consider impregnable 
positions. They are these: That all those powers which relate 
to merely municipal legislation, or what may perhaps, more 
properly be called internal police, are not thus surrendered 
or restrained 3 and that, consequently, in relation to these, the 
authority of a State is complete, unqualified, and exclusive." 14 
Justice Story dissented, holding that the law interfered with 
the commerce power of the national government. His dis- 
sent is probably an indication of what the decision of John 
Marshall's Court would have been. The difference between 
his dissent and the Court's decision marks the difference be- 
tween the old Court and the new. 

In 1848 the Court was again forced to decide on the con- 
stitutionality of State laws affecting immigration. The case 
of N orris v. City of Boston involved a Massachusetts statute 
and the case of Smith v. Turner involved a New York statute. 
They were considered together and reported under the head 
Passenger Cases ^ The Massachusetts law provided for in- 
spection by city officials of immigrant passengers on incoming 
ships. If any immigrants were found who were considered 

14 II Peters, 139. K 7 Howard, 283. 


likely to become a public charge they were not to be allowed 
to land until the master of the ship had posted a bond in each 
case that the passenger in question would not become a public 
charge within ten years. The New York law required the 
payment of a small tax on each passenger on entering ships, 
the money derived from this source to be used to maintain a 
marine hospital. The majority of the Court held both of 
these laws unconstitutional. However., there was wide dis- 
agreement in the reasoning of the justices, and numerous 
opinions were written. 

Chief Justice Taney wrote a dissenting opinion in which 
he upheld the constitutionality of the laws. To him the laws 
seemed a reasonable exercise of the police power reserved 
by the States. In speaking of the Massachusetts law he said, 
"Massachusetts deems the introduction of aliens into the State 
from foreign countries likely to produce in the State a numer- 
ous pauper population, heavily and injuriously burdensome 
to its citizens. It would be easy to show, from the public 
history of the times, that the apprehensions of the State are 
well founded j that a fearful amount of disease and pauperism 
is daily brought to our shores in emigrant ships, and that 
measures of precaution and self-defence have become abso- 
lutely necessary on the Atlantic border." 16 These statements 
show his keen appreciation of the problems faced by the sea- 
board States as a result of the increasing influx of immigrants. 
But to him it was not fundamentally a question of the reason- 
ableness of the law, and he added, "Whether this law was 
necessary or not is not a question for this court ; and I for- 
bear, therefore to discuss its justice and necessity. This court 
has no power to inquire whether a State has acted wisely or 
justly in the exercise of its reserved powers." 17 

18 7 Howard, 467-68. 

17 7 Howard, 468. Compare with the statements of Mr. Justice Holmes: "It 
is settled by various decisions of this court that state constitutions and state laws 
may regulate life in many ways which we as legislators might think as injudicious 


He pointed out that the real question involved was one o 
power. He said: 

And the first inquiry is, whether under the Constitution of 
the United States, the federal government has the power to compel 
the several States to receive . . . every person or class of persons 
whom it may be the policy or pleasure of the United States to 
admit. ... I do not mean to say that the general government 
have, by treaty or act of Congress, required the State of Massachu- 
setts to permit the aliens in question to land. I think there is no 
treaty or act of Congress which can justly be so construed. . . . 
For if the people of the several States of this Union reserved to 
themselves the power of expelling from their borders any person, 
or class of persons, whom it might deem dangerous to its peace or 
likely to produce a physical or moral evil among its citizens, then 
any treaty or law of Congress invading this right, and authorizing 
the introduction of any person or description of persons against 
the consent of the State, would be an usurpation of power which 
the court could neither recognize nor enforce. 18 

Taney says he had supposed the question of a State's right 
to expel persons deemed dangerous or undesirable was no 
longer open to dispute. On several previous occasions the 
Court had distinctly decided that the States had that power. 
To him it was equally clear that if a State "may remove from 
among its citizens any person or description of persons whom 
it regards as injurious to their welfare, it follows that it may 
meet them at the threshold and prevent them from entering. 
. . . Neither can this be a concurrent power . . . the sov- 
ereignty which possesses the right must in its exercise be alto- 

or if you like as tyrannical as this, and which equally with this interfere with the 
liberty to contract. . . . But a constitution is not intended to embody a particular 
economic theory, whether of paternalism and the organic relation of the citizen to 
the State or of laissez fairs." Lochner v. New York, 198 U. S. 75 (1904). Dis- 
senting opinion. See also his decision in Laurel Hill Cemetery v. San Francisco, 
216 U. S. 365 (1909). 

18 7 Howard, 465-66. The decision of Missouri v. Holland, 252 U. S. 416 
(1920) would seem to be contrary to this doctrine. 


gether independent of the other." 10 His own conclusion, 
"both upon principle and upon the authority of adjudged 
cases," was that the States had retained the power, both to 
expel from and to prevent from entering their boundaries all 
persons deemed dangerous or injurious to the welfare of their 
citizens. And the State had the exclusive right to determine 
whether or not the danger existed, "free from the control of 
the general government. 5 ' 20 

The Relation between the Police Power and the 
Commerce Power 

In discussing the relation between these laws and the com- 
merce power of the national government Taney asserted that 
passengers are not imports. 21 In a note at the close of the 
opinion he added, "It has been said in the discussion of these 
cases . . . that commerce means intercourse; and that the 
power granted to regulate it ought to be construed to include 
intercourse." If this was an attempt by a substitution of 
words to read into the Constitution an enlargement of na- 
tional power and a corresponding diminution of State power 
it was utterly unwarranted, according to his canons of con- 
stitutional construction. He said, if the word intercourse 
"means nothing more than the word commerce, it is merely 
the addition of a word without changing the argument 5 but 
if it is a word of larger meaning, it is sufficient to say that 
then this court cannot substitute it for the word of more 
limited meaning contained in the Constitution." 22 

It will be seen from Taney's opinion in this case that he 
believed that the States had a wide independence in the exer- 
cise of their police powers. The national government had no 
right to infringe on these powers either by statute or by 
treaty. The authority being reserved by the States, and 

19 7 Howard, 466. a Ibid., 477. 

20 Ibid., 467. * Ibid., 493. 


wholly in their hands, was to be exercised at their discretion. 
Whether they used it wisely or not, or whether they used it 
at all, was a matter over which the national government had 
no control. 

Taney had before this expressed his belief that the na- 
tional government could not infringe on the reserved powers 
of the States even in the exercise of its treaty making power. 
In 1831, while he was Attorney General he had expressed an 
opinion that the national government could not by treaty 
interfere with the right of a State to prohibit slavery within 
its territory. 23 Speaking for the Supreme Court in the case 
of Holmes v. Jennison in j 840 he said, "The power to make 
treaties . . . was designed to include all those subjects, 
which, in the ordinary intercourse of nations, had usually 
been made subjects of negotiation or treaty 5 and which are 
consistent with the nature of our institutions, and the dis- 
tribution of powers between the general and state govern- 
ments." 24 

In a later case involving the relation between the police 
power of the States and the commerce power of the national 
government Taney, speaking for tKe Court, upheld the power 
of a port city to make police regulations for its harbor. 25 A 
collision of ships had occurred in the harbor of Charleston 
and it was alleged that one ship had violated regulations 
established by ordinances of the city. The regulations pro- 
vided that no ship should lie in the thoroughfare for more 

^Official O-pinions of the Attorneys General, II (1825-1835), 4.77. 

2t 14 Peters, 569. 

25 Brig James Gray v. Skip John Fraser et al., 2.1 Howard, 184 (1858). In 
1851 in the case of Coolcy v. Wardens of the Port, when a similar question was at 
issue the Court had said of the commerce power of the national government, 
"Whatever subjects of this power are in their nature national, or admit only of 
one uniform system, or plan of regulation, may justly be said to be of such a 
nature as to require exclusive legislation by Congress. That this cannot be 
affirmed of laws for the regulation of pilots and pilotage is plain." 12 Howard, 
319. Although Taney did not write this decision he was one of the majority 
whose judgment It represented. 


than twenty-four hours and required ail vessels anchored in 
the harbor to keep a light burning on board from dark until 
daylight. In his decision of the case Taney said that such 
regulations were necessary in all ports for the convenience 
and safety of commerce. "And the local authorities have a 
right to prescribe at what wharf a vessel may lie, and how 
long she may remain there, where she may unload or take 
on board particular cargoes, where she may anchor in the 
harbor, and for what time, and what description of light she 
shall display at night to warn the passing vessels of her posi- 
tion, and that she is at anchor and not under sail." These 
regulations must be obeyed by all ships, no matter from what 
part of the world they may corne. And, he asserted, there is 
nothing in such regulations which conflicts with any law of 
Congress regulating commerce or with the admiralty jurisdic- 
tion of the federal courts. 26 

The Power to Regulate the Liquor Traffic 
Perhaps the most interesting exercise of the police power in 
the reforming period which we are discussing came in the 
decade from 1846 to 1856. In those ten years sixteen States 
passed anti-liquor laws, more or less drastic in nature. 27 
These laws were a severe strain on the doctrine of vested 
rights. In some instances they were attacked on the ground 
that they violated natural rights, in others on the ground that 
they were contrary to the commerce power of the national 
government. In most cases these laws were upheld by the 
State courts, which were inclined to leave the definition of the 
police power essentially to the discretion of the legislatures. 28 
In 1847, the Supreme Court of the United States put a 

86 2 1 Howard, 187-88. 

27 E. S. Corwin, "The Doctrine of Due Process of Law before the Civil War," 
Harvard Law Review t XXIV (1911), 460-79. 

28 See State v. Noyes, 10 Foster, 279 (N, H. 1855); Goddard v. Jacksonville, 
15 111., 589 (1854); People v. Gallagher, 4 Mich., 244 (1856). An exception to 
the rule was Wynehatner v. State of New York, 13 N. Y. 378 (1856). 


damper on the argument that such laws were repugnant to 
the commerce power of the national government. In that 
year three cases came before the Court involving State laws 
which aimed to discourage the use of hard liquors by pro- 
hibiting their sale in small quantities and by dealers without 
licenses obtained from State authorities. 29 The laws were 
alleged to be unconstitutional on the ground that they were 
an infringement on the national government's power over 
interstate and foreign commerce. 

Chief Justice Taney delivered the decision of the Court. 
In the beginning he declared that a law of Congress regulat- 
ing interstate or foreign commerce must be supreme, and any 
State law conflicting with such a regulation would have to be 
set aside. But the States had never surrendered power over 
trade and commerce within the State. He pointed out that 
these principles had never been questioned, that the difficulty 
lay in applying them. It was not always easy to draw the 
line between foreign and domestic commerce and tell just 
where one left off and the other began. The Court had 
already laid down the "original package" doctrine in the case 
of Brown v. The State of Maryland. 30 Although Taney had 
been counsel for the State of Maryland in that case, and had 
at the time thought the original package doctrine a wrong in- 
terpretation of the Constitution, he says now, "But further 
and mature reflection has convinced me that the rule laid 
down by the Supreme Court is a just and safe one, and per- 
haps the best that could have been adopted for preserving 
the right of the United States on the one hand, and of the 
States on the other, and preventing collision between them." 31 
Recognizing the rule as authoritative he proceeds to apply it 
to the cases at hand. It is perhaps well to remember in this 
connection that Taney and Marshall usually gave outward 

^License Cases, 5 Howard, 573. * 12 Wheaton, 419 (1827). 

81 5 Howard, 575. 


allegiance to the same principles, but their interpretations 
differed at vital points. 

Applying the original package doctrine to the liquor li- 
cense laws in question, Taney says that if the State laws come 
in conflict with acts of Congress by attempting to obstruct the 
importation or sale of liquors in the original container in 
which they were imported, after Congress has authorized 
their importation, the State laws must be held void. It had 
been suggested in the argument of the case that if a State 
considered traffic in hard liquor to be injurious to its citizens 
and productive of "immorality, vice, and pauperism" it might 
constitutionally refuse to permit its importation notwithstand- 
ing the laws of Congress. The contention was that a state 
could do this on the same ground that it could resist "the 
introduction of disease, pestilence, or pauperism from 
abroad." At this point Taney makes a distinction which is 
designed to clarify the line between the police power of the 
States and the commerce power of the national government* 
He says, 

But it must be remembered that disease, pestilence and pauperism 
are not subjects of commerce, although sometimes among its 
attendant evils. They are not things to be regulated and trafficked 
in, but to be prevented, as far as human foresight or human 
means can guard against them. But spirits and distilled liquors 
are universally admitted to be subjects of ownership and property, 
and are therefore subjects of exchange, barter, and traffic, like 
any other commodity in which a right of property exists. And 
Congress, under its general power to regulate commerce with 
foreign nations, may prescribe what article of merchandise shall be 
admitted, and what excluded; and may therefore admit, or not, 
as it shall deem best, the importation of ardent spirits. And inas- 
much as the laws of Congress authorize their importation, no State 
has a right to prohibit their introduction. 32 

SS 5 Howard, 5?6-77- 


We may infer from these statements that Taney believed 
the commerce power of the national government to be con- 
cerned primarily with things which were property and could 
be bought and sold. In his dissenting opinion in the Passen- 
ger Cases, already referred to, he declared that passengers 
were not imports. 33 Over all matters which were legitimate 
subjects for the police power, except the traffic in the things 
in interstate and foreign commerce, Taney was willing to give 
the States complete power. Although one should be aware 
of the danger of reading too much into a decision, it is per- 
haps fair to assume also that Taney would have been very 
conservative about allowing the national government to exer- 
cise what has come to be called national police power. One 
cannot help believing that he would probably have agreed 
with the decision of the Court in the child labor case of Ham- 
mer v. Dagenhart in which it declared, "There is no power 
vested in Congress to require the States to exercise their police 
power so as to prevent possible unfair competition. . . . The 
grant of power to Congress over the subject of interstate com- 
merce was to enable it to regulate such commerce, and not to 
give it authority to control the States in their exercise of the 
police power over local trade and manufacture." 34 Taney's 
distinction between the powers of the national and State 
governments was too nice to allow the national government 
to encroach on the sphere reserved by the States. 

In the License Cases Taney interprets the State laws in 
question as not interfering with traffic in liquor while it is still 
a part of foreign commerce, that is, while it is still in the 
hands of the importer for sale in its original package. The 
laws act on the retail trade within the State. They affect the 
article after it has become a part of the general mass of 
property in the State. Taney lays down a rule which estab- 
lishes the complete independence of the State, in the exercise 

83 7 Howard, 477. M 247 U. S. 273-74 (1917). 


of its police power, to enact legislation affecting traffic in 
articles after they have ceased to be a part of foreign com- 
merce, even though such legislation may take all the profits 
out of importation. He says. 

These laws may, indeed, discourage imports, and diminish the 
price which ardent spirits would otherwise bring. But although a 
State is bound to receive and to permit the sale by the importer of 
any article of merchandise which Congress authorizes to be im- 
ported, it is not bound to furnish a market for it, nor to abstain 
from the passage of any law which it may deem necessary or 
advisable to guard the health or morals of its citizens, although 
such law may discourage importation, or diminish the profits of 
the importer, or lessen the revenue of the general government. 
And if any State deems the retail and internal traffic in ardent 
spirits injurious to its citizens, and calculated to produce idleness, 
vice, or debauchery, I see nothing in the constitution of the United 
States to prevent it from regulating and restraining the traffic, or 
from prohibiting it altogether, if it thinks proper. 35 

The spirit of these statements is the same as that of Mr. 
Justice Holmes when he says in Erie Railroad Company v. 
Board of Public Utility Commissioners et al. y "To engage in 
interstate commerce the railroad must get on to the land and 
to get on to it must comply with the conditions imposed by 
the State for the safety of its citizens. ... If the burdens 
imposed are so great that the road cannot be run at a^profit 
it can stop, whatever misfortunes the stopping may pro- 
duce." 36 

One of the license laws involved was a New Hampshire 
statute prohibiting the sale of distilled liquor without a li- 
cense from the officials of the town in which the liquor dealer 
lived. The plaintiffs in error in this case had imported a 
barrel of liquor from Boston and sold it in the cask in which 
it was imported, without a license. In discussing this case 

85 5 Howard, 577. ^ 254 U. S. 411 (1920)* 


Taney said that the power of Congress to regulate interstate 
commerce was coextensive with its power to regulate foreign 
commerce. The question at issue was whether a State is pro- 
hibited by the Constitution of the United States from making 
any regulations of foreign or interstate commerce "although 
such regulation is confined to its own territory, and made for 
its own convenience or interest-, and does not come in conflict 
with any law of Congress. In other words, whether the 
grant of power to Congress is of itself a prohibition to the 
States, and renders all State laws upon the subject null and 
void." 37 The Court were divided on that question. Taney 
thought that a mere grant of power to the federal govern- 
ment could not be construed as an absolute prohibition to the 
States to legislate on the same subject. After acknowledging 
that Congress had "the controlling and supreme power 35 over 
interstate and foreign commerce he said, "Yet, in my judg- 
ment, the State may nevertheless, for the safety or con- 
venience of trade, or for the protection of the health of its 
citizens, make regulations of commerce for its own ports and 
harbours, and for its own territory 5 and such regulations are 
valid unless they come in conflict with a law of Congress." 38 
He backed this contention by pointing to the language of the 
Constitution and to State laws which had been passed, and by 
referring to the previous decisions of the Court. 39 

Taney* s Definition of Police Power 

It had been contended in the argument before the Court that 
quarantine and health laws were passed by the States by 
virtue of their police powers and not by virtue of a power to 
regulate commerce. Taney disagrees with this interpretation 
of the police power, and gives it a broad definition. He says, 
But what are the police powers of a State? They are nothing 
more or less than the powers of government inherent in every sov- 
37 5 Howard, 578. * Ibid., B79- Ibid., 579-81. 


ereignty to the extent of its dominions. And whether a State 
passes a quarantine law, or a law to punish offences, or to establish 
courts of justice, or requiring certain instruments to be recorded, 
or to regulate commerce within its own limits, in every case it 
exercises the same powers; that is to say, the power of sovereignty, 
the power to govern men and things within the limits of its do- 
minion. It is by virtue of this power that it legislates; and its 
authority to make regulations of commerce is as absolute as its 
power to pass health laws, except in so far as it has been restricted 
by the constitution of the United States. 40 

Taney thus makes police power synonymous with the 
reserved powers of the States. It Is the power Inherent In 
sovereignty, which in the United States resides in the States 
except as it is abridged by the federal Constitution. Since 
the Civil War there has not been so much talk of the sov- 
ereign powers of the States, and the Fourteenth Amendment 
by Its "due process of law" limitation on State power has 
affected the development of the conception of police power. 
There has been a tendency to try to give the police power a 
more specific definition than Taney's. In spite of these facts 
Taney's definition has been widely quoted in modern cases. 
As modern attempts at definition of the police power are en- 
larged to cover new and varied subjects of legislation, they 
approximate more closely Taney's broad inclusive definition. 
The usefulness of Taney's definition, and its continuing 
influence on the development of the law, is indicated by the 
number and the character of the decisions in which it has been 
quoted or cited. For example, it has been quoted, upholding 
a State law designed to prevent the maintenance of sweat- 
shops, 41 upholding the right of a State to regulate rates of 
public service corporations/ 2 upholding the levying of a 

"ibid., 583. 

41 State v. Hyman, $7 Atlantic, 6, 9 (McL 1904). 

43 St. Louis Southwestern Ry. Co. v. Aliens e al. 3 187 Fed., 290-97 (1911). 


drainage tax/ 3 upholding a State law preventing the passage 
of sewage into streams used for drinking water, 44 and up- 
holding a State law regulating prices charged by grain ware- 
houses. 45 It was quoted in 1934 in the Court's decision in 
the case of Nebbia v. New York, upholding a State law fixing 
the retail price of milk. 46 In these and in other cases in which 
it has been used the broad definition of police power which 
Taney wrote into the law has been used by the courts in up- 
holding legislation enacted in recognition of changed eco- 
nomic and social conditions or in response to an increasing 
demand for social justice. 47 

Later decisions of the Supreme Court have impaired the 
authority of Taney's decision that the State might pass legis- 
lation directly affecting interstate commerce as long as it did 
not conflict with federal legislation. The Court has accepted 
the doctrine that the failure of Congress to legislate on mat- 
ters directly affecting interstate commerce is equivalent to a 
mandate that It shall be free. Under this principle it was 
held that a State could not prevent the importation of liquor 
from another State and that it could not prohibit the sale 
within its territory of liquor in the original package by a 
citizen of another State. 48 As a result of such decisions 
Congress enacted legislation to protect the dry States from 
interstate shipments of liquor. 49 

43 Houck et al. v. Little River Drainage District et aL, 154 S. W. 739-41 (Mo. 


44 City of Durham v. Eno Cotton Mills, 54 S. E. 453-63 (N. C. 1906). 
45 ' Munn v. Illinois, 94 U. S. 113 (1876). 

46 291 U. S. 524.. 

47 See also Railroad Commission v. Louisville & N. R. Co., 80 S. E. 327, 
332-33 (Ga. 1913)5 State v. Standard Oil Co. et al., 116 S. W. 902, 1019 (Mo. 
1909); Waters-Pierce Oil Co. v. State, 44 S. W. 936-40 (Tex. 1898); Laurel 
Fork 6f Sand Hill R. Co. v. W. Va. Transportation Co., 25 W. Va., 324, 349-50 


^Bowman v. Chicago & N. W. Ry. Co., 125 U. S. 465 (1888); Leisy v. 
Hardin, 135 U. S. ioo (1890). T. M. Cooley, op. cit., pp. 846-47. 

49 Notably the Webb-Kenyon Act. See Charles Warren, The Supreme Court in 
United States History, II, 732. 


Taney's opinion that the liquor traffic within the State was 
a legitimate subject of regulatory and restrictive legislation 
and that a State might destroy the retail market for imported 
goods has had a continuing influence on cases involving police 
power legislation. In 1900, the Supreme Court of the 
United States quoted Taney in upholding a Tennessee law 
prohibiting the sale of cigarettes on similar grounds. 50 The 
Supreme Court of Illinois has used the same reasoning in up- 
holding a State law directed against the sale or possession of 
certain kinds of wild game during specified seasons, whether 
the game was killed in the State or shipped in from another 
State. 51 The Supreme Court of the United States and 
numerous State courts have cited or quoted from Taney's 
License Cases decision in upholding various State liquor 
laws. 52 

Taney's Conception of the Police Power an Outgrowth of his 
Doctrine of State Sovereignty 

The decision in the License Cases embodied Taney's theory 
of the absolute power of the State to legislate in whatever 
way its legislators thought would promote the welfare of its 
citizens, so long as it did not directly interfere with a consti- 
tutional exercise of power by the federal government, or 
with the provisions of the Constitution itself. The principles 
laid down in that decision have been used to sustain varied 
statutes representing legislative attempts to protect the health, 
morals, or welfare of citizens. It is a doctrine that allows 
wide freedom for social experimentation by the States. 

Professor Mott has intimated that Taney was the first 
jurist to suggest due process of law as a limitation of the 

50 Austin v. Tennessee, 179 U. S. 343-5- 

51 Magner v. The People of Illinois, 97 111., 320, 335-36 (1881). 

52 E.g. Mugler v. Kansas, 123 U. S. 623, 664 (1887); Niles v. Rhodes, 7 
Mich., 374, 384 (1859); Santo, et aL v. The Stale of Iowa, 2 la., 165, 194 
(1855); Ex parte Woodward, 61 Southern, 295, 297 (Ala. 1912). 


police power, because in the Dred Scott Case he held the 
federal government powerless to bar slavery in the Terri- 
tories on the ground that it would take away private property 
without due process of law and hence violate the Fifth 
Amendment.'"' 3 If it is true that Taney originated the idea 
he did it inadvertently. His opinion in the Dred Scott Case 
shows that he thought the national government much limited 
in its control over the Territories subject to its government 
and wholly without any such wide range of power as that 
comprehended in the police power of the States. It is prob- 
ably fair to assume that had Taney lived to interpret the 
Fourteenth Amendment he would have construed it strictly. 
It was his practice to construe every constitutional limitation 
on a State's freedom of action over its domestic concerns 
strictly and with regard for the purposes for which it was 

Chief Justice Taney's theory of the broad nature of the 
police power and the independence of the States was in har- 
mony with the liberal tendency of his time. The States were 
enabled to meet new social problems without fear of judicial 
disapproval such as would doubtless have met their legisla- 
tion in the days of John Marshall's nationalizing court. 
While Taney acknowledged the supremacy of national legis- 
lation in the proper sphere he did not believe that the Consti- 
tution meant the grants of power to the national government 
to exercise a crippling influence on the police power reserved 
by the States. His decisions are forerunners of modern 
liberal police power decisions. 

Although Taney in his License Cases 54 decision defined 
police power as "nothing more nor less" than the reserved 
sovereignty of the States, it is noticeable that the important 
cases in which he took part, involving the power of the State 

53 Rodney Mott, Due Process of Law, pp. 327-29. 

54 5 Howard, 583. 


to protect the public health or the public morals or the public 
safety or the general welfare, were those involving also either 
the contract clause or the commerce power of the national 
government. The concept of the police power in action was 
being worked out mainly in the conflict between the State 
legislation on such matters and the commerce power of the 
national government. State laws to prevent pauperism 
caused by immigration, 55 to protect the public health by 
regulating or prohibiting the liquor traffic, 58 to protect the 
public safety and convenience by means of regulations of har- 
bor traffic, 57 were all attacked before the Court on the ground 
that they interfered with the commerce power of the national 
government. In every case of this nature that came before his 
Court Taney voted in favor of sustaining the legislation of 
the States. 

Since the adoption of the Fourteenth Amendment the due 
process clause has been applied as a limitation on legislation 
which purports to exercise the police power of the States. 
Private interests threatened by legislation intended to further 
the general welfare have sought protection in the Fourteenth 
Amendment. The conflict between due process of law and the 
legislative power of the States has led to the further develop- 
ment of the concept of the police power. 58 The liberal mem- 
bers of the Court have favored a policy of little interference 
with the police power of the States. The conservatives have 
been very free in declaring such legislation unconstitutional. 59 

55 City of New York v. Miln, n Peters, 102 (1837)5 Passenger Cases, 7 
Howard, 283 (1849). 

58 License Cases , 5 Howard, 554 (1846). 

57 Brig James Gray v. Ship John Fraser, 21 Howard, 184 (1858)5 see also 
Cooley v. Board of Wardens of the Port, 12 Howard, 299 (1851). 

58 Willoughby, op. cit., III, 1765. See also R. A. Brown, "Due Process of 
Law, Police Power, and the Supreme Court," Harvard Law Review, XL (1927), 

50 R. A. Brown, "Police Power Legislation for Health and Personal Safety," 
Harvard Law Review, XLII (1929), 868. 


The use in our time of due process of law as a limitation 
on the police power is not unlike the use before the Civil War 
of the contract clause and the commerce power as limitations 
on the police power. Two of the dominant objectives of 
Marshall, and probably of the other conservatives of the 
early period as well, were the maintenance of the sanctity of 
private property rights and the establishment of the finality 
of judicial interpretation of the law. If Marshall felt that 
he needed more support than the Constitution gave him in 
protecting property rights, he appealed to natural law. 60 No 
one will question the fact that the dominant motive in nearly 
all modern decisions against police power legislation is the 
desire to protect private property rights. Nor can it be 
doubted that the conservatives have a high conception of 
judicial supremacy when one recollects that Mr. Justice 
Brewer held 41 per cent of the police power legislation that 
came before him unconstitutional, that Mr. Justice Peckham 
made a similar record, and that Mr. Justice McReynolds is 
not far behind them. 61 The conflict between the ideas of the 
conservatives and those of such a jurist as Mr. Justice 
Holmes, who held that the Fourteenth Amendment should 
not be used "beyond the absolute compulsion of its words to 
prevent the making of social experiments" by the States, 62 is 
essentially the same as the conflict between the ideas of 
Marshall and those of Taney. 

60 Fletcher v. Peck, 6 Cranch, 135. 

61 R. A. Brown, "Police Power Legislation for Health and Personal Safety," 
Harvard Law Review, XLII (1929), 868. 

62 Dissenting- opinion in Truax v. Corrigan, 257 U. S. 344 (1921). 


Taney's Personal Viewpoint 

THE CASUAL student of history always thinks of Taney in 
connection with the Dred Scott Case. His opinion in that 
celebrated case not only aroused the bitter hostility of the 
anti-slavery forces of his time, but it has been written up in 
the histories in such a way that it leaves the reader with the 
impression that Taney was a judicial leader of the pro-slavery 
forces. 1 A number of factors contribute to the explanation of 
the Court's action in the case. One who is interested in 
Taney's part in it must examine evidence of different kinds. 
Taney's personal attitude toward slaves and slavery is im- 
portant, for whether for good or evil, judges, like the rest of 
us, are influenced by personal attitudes and by their own back- 
grounds. Taney's other cases involving slavery questions 
must be examined for light that they may throw on his theory 
of slavery. The political conditions of the time when the 
Dred Scott Case was decided must also be taken into con- 

As we have already noticed, Taney grew up on a slave 
tended plantation in Maryland. In time he inherited some 
of the family's slaves, but these he soon set free. In 1857 ne 

I am not a slaveholder. More than thirty years ago I manumitted 
every slave I ever owned, except two, who were too old, when they 
became my property, to provide for themselves. These two I sup- 
ported in comfort as long as they lived. And I am glad to say 
that none of those whom I manumitted disappointed my expecta- 

1 See T. C. Smith, Parties and Slavery, p. 199; H. W. Elson, History of the 
United States of America, IV, 47-49; D. S. Muzzey, The American Adventure^ I, 
502; J. Schouler, History of the United States of America, V, 378-81. 



lions, but have shown by their conduc [sic] that they were worthy 
of freedom; and knew how to use it. 2 

Taney's personal kindness to Negroes with whom he came 
in contact is illustrated by two incidents: One in which he 
helped a little child, and the other in which he showed his 
affection for two old people who had been his faithful servants 
for a long time. Tyler relates that, while Taney was Attor- 
ney General of the United States, one cold morning as he 
was hurrying to his office he saw a little Negro girl trying 
vainly to pump some water into her pail. When the Attor- 
ney General saw the little girl shivering in the wind he 
pumped her water for her, put the bucket on her head, and 
said, "Tell whoever sent you to the pump, that it is too cold 
a morning to send out such a little girl." 3 The other incident 
referred to took place many years later. In 1860 Taney had 
some large-sized photographs of himself taken. He ordered 
two of them put into gilt frames, one for his old Negro man- 
servant, and the other for his old Negro servant-woman. 
These pictures were presented, as Taney wrote at the bottom 
of each, "as a mark of my esteem," and signed "R. B. 
Taney." 4 In ,uch incidents one sees the influence of Monica 

On one occasion Taney is reported to have said to an 
acquaintance, "Thank God that at least in one place all men 
are equal, in the church of God. I do not consider it any 
degradation to kneel side by side with a negro in the house 
of our Heavenly Father." 5 

In 1819 Taney, then practicing law in Frederick, de- 
fended Reverend Jacob Gruber, Methodist Abolitionist who 
had strongly condemned slavery to a camp meeting audience 

2 To Samuel Nott, August 19, 1857, Proceedings of the Massachusetts His- 
torical Society, XII, 447. 

3 Tyler, op. cit., p. 190. 

4 E. S. Taney, "Roger B. Taney," The Green Bag, VII (1895), 362. 
5 J. A. Walter, in a letter to The Century Magazine^ IV (1883), 958. 


composed both of slave owners and slaves, and had been, in- 
dicted for seeking to incite slaves to rebellion. 6 The fact that 
Taney was attorney for an Abolitionist does not, in itself, 
indicate anything about his personal attitude toward slavery . 7 
However, in his plea to the jury in this case Taney used lan- 
guage which seems to reveal his own opinions on the subject. 
After defending Reverend Gruber's right to free speech 
Taney said: 

Mr. Gruber feels that it Is due to his own character, to the 
station which he fills . . . not only to defend himself from this 
prosecution, but also to avow, and to vindicate here, the principles 
which he maintained in his sermon. There is no law which for- 
bids us to speak of slavery as we think of it. ... He did rebuke 
those masters, who, in the exercise of power, are deaf to the calls 
of humanity; and he warned them of the evils they might bring 
upon themselves. He did speak with abhorrence of those reptiles 
who live by trading in human flesh, and enrich themselves by 
tearing the husband from the wife, the infant from the bosom of 
the mother; and this, I am instructed, was the head and front of 
his offending. Shall I content myself with saying he had a right 
to say this? that there is no law to punish him? So far is he from 
being the object of punishment in any form of proceeding, that 
we are prepared to maintain the same principles, and to use, if 
necessary, the same language here, in the temple of justice and in 
the presence of those who are the ministers of the law. A hard 

6 Tyler, op. cit., pp. 123-27. 

7 Gustavus Myers, Socialist historian of the Supreme Court, condemns Taney 
for his work as attorney for John Gaoding, an alleged slave-trader, m United 
States v. Gooding t 12 Wheaton, 4.60 (1827). Gooding's attorneys successfully 
based the defense largely on technicalities. Myers says Taney's part in this case 
won the high regard of the slave owners, and was one thing that "caused them to 
push him forward later for Attorney-General of the United States, Secretary of the 
Treasury, and then for the Chief Justiceship of the Supreme Court of the United 
States." G. Myers, History of the Supreme Court of the "United States, p. 365. 
Taney's work in this case is offset by the fact that in 1809 he tried to secure the 
freedom of a negro accused of the rape of a white girl, largely on technicalities. 
Burke v. State, z Harris & Johnson, 426 (Md.). See Steiner, op. cit., pp. 65-66. 
As a matter of fact neither case indicates anything about Taney's own views on 
slavery. He was merely serving as a lawyer for the defense in both instances. 


necessity, indeed, compels us to endure the evil of slavery for a 
time. It was imposed upon us by another nation while we were 
yet in a state of colonial vassalage. It cannot be easily or suddenly 
removed. Yet, while it continues, it is a blot on our national 
character 5 and every real lover of freedom confidently hopes that 
it will effectually, though it must be gradually, wiped away, and 
earnestly looks for the means by which this necessary object may 
be best attained. 8 

Years later, in 1857, Taney wrote a letter to Reverend 
Samuel Nott, who had written a pamphlet on slavery, which 
reveals something of his attitude at that time. It should be 
kept in mind that this letter was written when the controversy 
over the slavery question was at its height. Opinions on the 
subject of slavery had changed much in both North and South 
since 1819. Fire eaters in both sections were busily stirring 
in the caldron that was soon to boil over in war. In his letter 
Taney takes a realistic view of the problems that faced the 
southern slave owner. 

He said, "Every intelligent person whose life has been 
passed in a slaveholding State, and who has carefully ob- 
served the character and capacity of the African race, will 
see that a general and sudden emancipation would be abso- 
lute ruin to the negroes, as well as to the white population." 
He asserts that Maryland and Virginia have given every facil- 
ity for the emancipation of Negroes of an age and condition 
of health to support themselves, and that manumissions were 
numerous before "the present excitement." "And in the 
greater number of cases that have come under my observa- 
tion, freedom has been a serious misfortune to the manumitted 
slave; and he has most commonly brought upon himself 
privations and sufferings which he would not have been called 
on to endure in a state of slavery. In many cases, however, 
it has undoubtedly promoted his happiness." 9 

8 Tyler, op. cit., pp. 129-31. 

9 Taney to Nott, August 19, 1857, Proceedings of the Massachusetts Historical 


Then he goes on to discuss the duty of the master toward 
his slaves saying, 

Unquestionably it is the duty of every master to watch over the 
religious and moral culture of his slaves, and to give them every 
comfort and privilege that is not incompatible with the continued 
existence of the relations between them. And so far as my knowl- 
edge extends, this duty is faithfully performed by the great body 
of hereditary slaveholders in Maryland and Virginia. , . . And 
I know it has been the desire of the statesmen of Maryland to 
secure to the slave every protection from maltreatment by the 
master that can with safety be given, and without impairing that 
degree of authority which is essential to the interest and well being 
of both. But this question is a very delicate one, and must at all 
times be approached with the utmost caution. The safe and true 
line must always depend upon existing circumstances, and they 
must be thoroughly inquired into and understood before there can 
be any safe or useful legislation in a State. 10 

Attempts of the South to better the condition of the 
Negroes by humane and intelligent legislation had been 
slowed up by the agitation of the Abolitionists. Taney says. 

The pains which have unhappily been taken for some years past 
to produce discontent and ill-feeling in the subject race, has 
rendered any movement in that direction still more difficult. For 
it has naturally made the master more sensitive and jealous of any 
new restriction upon the power he has heretofore exercised and 
which he has been accustomed to think essential to the maintenance 
of his authority as master. And he also feels that any step in that 
direction at the present time might injuriously affect the minds 
of the slaves. They are for the most part weak, credulous, and 
easily misled by stronger minds. 11 

This was a good presentation of conditions as they existed 
among the slaveholders of the upper South. It came from 
the pen of a Southerner who had grown up in the midst of 
slavery and who, believing slavery wrong, had freed the 

w md., P . 446. n /&& 


slaves which he inherited. It was typical of the opinion of 
many Southern gentlemen, although the number of those 
who thought slavery wrong had decreased almost as fast as 
radical Abolitionism had increased. The viewpoint of such 
men was naturally different from that of the Northern Aboli- 
tionists who also believed slavery wrong, but had had no 
experience with it, except perhaps to see an escaped slave in 
chains being taken back to servitude. 

Taney's views are very similar to those expressed earlier 
by Thomas Jefferson. Jefferson was one of the leading 
spokesmen of Southern anti-slavery sentiment in the gen- 
eration just preceding Taney's. In 1814 Jefferson wrote, 
referring to Negro slaves, "My opinion has ever been that, 
until more can be done for them, we should endeavor, with 
those whom fortune has thrown on our hands, to feed and 
clothe them well, protect them from all ill usage, require such 
reasonable labor only as is performed voluntarily by freemen, 
& be led by no repugnancies to abdicate them, and our duties 
to them. The laws do not permit us to turn them loose, if 
that were for their good: and to commute them for other 
property is to commit them to those whose usage of them we 
cannot control." 12 Jefferson thought that emancipation 
would come eventually, either by voluntary action of the 
slave owners or as a result of armed force. 13 He favored 
freeing all slaves born after a certain date, and sending them, 
furnished with farming implements and domestic animals, to 
St. Domingo or some such place. 14 But the whole problem 
of slavery seemed to him very difficult of solution. In 1820 
he wrote, "But as it is, we have the wolf by the ears, and we 

12 To Edward Coles, August 25, 1814, The Writings of Thomas Jefferson, IX, 

13 Ibid., 478. 

u "Notes on Virginia," ibid., Ill, 243-445 to Albert Gallatin, December 26, 
1820, ibid., X, 178. 


can neither hold him, nor safely let him go. Justice Is in one 
scale, and self-preservation In the other." 15 

The bitter fight over the admission of Missouri to the 
Union alarmed Jefferson. He said, "But this momentous 
question, like a fire bell in the night, awakened and filled me 
with terror, I considered It at once as the knell of the Union. 
It is hushed, indeed, for the moment. But this is a reprieve 
only, not a final sentence." 16 It seemed to him that the ques- 
tion involved was not a moral question but merely one of 
power. 17 Like Taney he believed slavery wrong and favored 
gradual emancipation. Also like Taney, he deplored the 
bitter struggle over the question of slavery in the Territories 
and feared for its effect on the permanence of the Union. 

The Legal Status of Slavery 

Taney's official opinions as Attorney General of the United 
States and his decisions as Chief Justice of the Supreme Court, 
other than the Dred Scott decision, taken as a whole do not 
show any bias either for or against slaver}'. Questions in- 
volving slavery were decided as legal questions, according to 
Taney's general principles of government. They were in 
harmony with his decisions on other matters involving the 
same principles. This is especially noticeable in the cases in- 
volving the power of the States to deal with slavery. In some 
slavery cases of a different nature there is not so much oppor- 
tunity for comparison with non-slavery cases. In all of them, 
Taney's decisions seem to have been a reasonable application 
of the laws of the time. 

Early in his official career he was twice required to pass on 
the status of slaves taken out of the United States and later 
brought back. At that time there was a federal law in force 
against the importation of slaves into the United States. In 

15 To John Holmes, April 22, 1820, ibid., pp. 157-58. 

M /fc*., p. 157- 

17 To LaFayette, December 26, 1820, ibid., p. 180. 


1831, while he was Attorney General, Taney was asked for 
an opinion as to whether a prosecution would lie in the fed- 
eral courts against certain citizens who had moved to Texas 
(then owned by Mexico) and, before becoming Mexican 
citizens, had returned to the United States bringing back with 
them the slaves which they had taken when they went to 
Mexico. His opinion was that the right to bring back the 
slaves did not depend upon the length of time that the parties 
had remained in Texas. If they had moved there with a 
view to permanent residence the slaves could not lawfully 
be brought back into the United States, but if the removal to 
Texas was only for a temporary purpose, and the owners had 
intended to return in a short while, the slaves might safely 
be brought back. 18 

During his first term as Chief Justice a case involving a 
similar question came before the Supreme Court. 19 An 
American woman had visited France, taking her Negro maid 
with her. When she returned to the United States she 
brought the girl back with her. The ship on which she ar- 
rived was libelled in the district court, charged with the 
importation of a slave. Taney held that there was nothing 
in the law to prevent the woman from bringing her slave back 
with her. The law against importing slaves, he said, was 
obviously directed against Negroes who were inhabitants of 
foreign countries. It could not be applied to colored persons 
domiciled in the United States and brought back after a 
temporary absence. "In the case before the court, although 
the girl had been staying for a time in France, in the service 
of her mistress j yet in construction of law, she continued an 
inhabitant of Louisiana. . . ." 20 

Only a few years later Taney had two opportunities to 

18 Official Opinions of the Attorneys General, II, 479-80. 
The Garonne (United States v. Garonne) n Peters, 73 (1837). 
, pp. 77, 78. 


pass on cases involving alleged violations of the law against 
the slave trade. In both cases he decided against the slave 
trader. While he was on circuit a case came before him in- 
volving a ship built for the slave trade. He said., "The fair 
construction of the act of congress is: That where the criminal 
purpose is proved to exist in the owner, or in the factor or 
master, who has the direction of the vessel at the time she is 
built or fitted out, the forfeiture attaches. . . ."- 1 The ship 
was condemned. In the same year he wrote the decision of 
the Supreme Court in the case of the United States v. 
Morris, 22 holding that a vessel equipped for the slave trade 
and on its way to Africa to get slaves was engaged in the 
trade, even though no slaves had as yet been taken aboard. 

The questions just considered involve aspects of slavery 
which do not touch directly on the institution as it existed 
within the United States. His decisions in these cases could 
have met with no reasonable objection, either from pro- 
slavery people or from the anti-slavery group. As we have 
already suggested they reveal little of Taney's personal atti- 
tude, but simply show that he was judicial in his treatment of 
the questions considered. It might be well in this connection, 
however, to recall that Taney in 1821, as a member of the 
Maryland Senate had voted against the repeal of the law 
prohibiting the importation of slaves into Maryland. 23 

Taney regarded slavery in the United States as a matter 
for the States to regulate, protect, or abolish, as they saw fit. 
In 1831, as Attorney General, he upheld the right of a State 
to set slaves free as soon as they were brought within its 
boundaries. He thought that the federal government could 
not interfere with that right. The master's right of property 
must depend upon the laws of the State. 24 Later as Chief 

21 Campbell's Reports, p. 417 (1840). 

22 14 Peters, 464 (1840). 

23 Votes and Proceedings of the Senate of Maryland) January IO, 1821, p. 19. 
^ Official Opinions of the Attorneys General, II, 475-77. 


Justice of the Supreme Court he wrote a number of decisions 
in which he treated slavery as a matter primarily of State 
concern. When a slave claimed freedom on the ground that 
his former owner had provided in her will that he should 
become free if sold or taken out of the State, and that he had 
been sold by the person who inherited him, Taney freed the 
slave. In so doing he simply applied the State law. 25 In the 
case of Strader et al. v. Graham^ the status of Kentucky 
slaves who had from time to time been taken across the 
border into Ohio for employment as musicians was in ques- 
tion. Taney said. 

Every state has an undoubted right to determine the status . . . 
of the persons domiciled within its territory; except in so far as 
the powers of the states in this respect are restrained, or duties and 
obligations imposed upon them, by the Constitution of the United 
States. There is nothing in the Constitution of the United States 
that can in any degree control the law of Kentucky upon this sub- 
ject. And the condition of the negroes, therefore, as to freedom 
or slavery, after their return, depended altogether upon the laws 
of that state, and could not be "influenced by the laws of Ohio. . . . 
The Court of Appeals have determined, that by the laws of the 
state they continued to be slaves. And their judgment upon this 
point is, upon this writ of error, conclusive upon this court, and 
we have no jurisdiction over it. 27 

As Attorney General Taney had asserted his belief that 
the federal government could not in the exercise of its treaty 
making power interfere with the right of a State to deal with 
slavery as it saw fit. 28 In 1 841, in a concurring opinion in the 
case of Groves v. Slaughter 2 * he held that the federal gov- 
ernment could not interfere with slavery in the States by its 

^Williams v. Ash, I Howard, I (184.3). 

26 10 Howard, 82 (1850). 

27 Ibid., 93, 94- 

28 Official Opinions of the Attorneys General) II, 476. 
**!$ Peters, 449. 


commerce power. In regard to the power of the federal 
government to regulate the slave trade between the States, 
he said. 

In my judgment, the power over this subject is exclusively with 
the several states ; and each of them has a right to decide for itself, 
whether it will, or will not, allow persons of this description to be 
brought within its limits, from another state, either for sale, or for 
any other purpose; and also to prescribe the manner and mode in 
which they may be introduced, and to determine their condition 
and treatment within their respective territories: and the action of 
the several states upon this subject cannot be controlled by con- 
gress, either by virtue of its power to regulate commerce, or by 
virtue of any power conferred by the constitution of the United 
States. 30 

In 1860, a Kentucky grand jury indicted a free Negro for 
helping a slave to escape. The accused had fled to Ohio, so 
the governor of that State was requested to arrest him and 
turn him over to the Kentucky authorities. This he refused 
to do. The State of Kentucky moved for a writ of mandamus 
from the Supreme Court commanding the governor of Ohio 
to surrender the fugitive. 31 Taney, delivering the decision of 
the Court., held that under the interstate rendition clause of 
the Constitution it was plainly the duty of the governor to 
deliver the fugitive to Kentucky, but there was no constitu- 
tional method by which he could be compelled to do it. He 
said, "And we think it clear, that the Federal Government, 
under the Constitution, has no power to impose on a State 
officer, as such, any duty whatever. . . ," 32 Such a power, 
he thought, would be inconsistent with the nature of the 
Union and incompatible with the dignity of the States. 

Thus far Taney's slavery decisions are State's rights de- 
cisions. In harmony with his police power decisions., he gives 
30 nid., 508. 

^Kentucky v. Dennison, 24 Howard, 66 (1860). 
32 Ibid., 107. 


to the States complete power to deal with the subject, except 
as it may be limited by specific constitutional provisions. 
However the Constitution contains one limitation on the 
power of the States to settle the status of slaves for them- 
selves. It says "No person held to Service or Labour in one 
State, under the Laws thereof, escaping into another, shall in 
Consequence of any Law or Regulation therein, be discharged 
from such Service or Labour, but shall be delivered up on 
Claim of the Party to whom such Service or Labour may be 
due.' m This was early, and generally, construed to give 
Congress power to provide for the return of fugitive slaves. 34 
Accepting this view Taney, also in harmony with his decisions 
involving other matters, held that the power of the national 
government on the subject was supreme and could not be 
interfered with. 

In 1842, in the case of Prigg v. Pennsylvania?* Mr. Jus- 
tice Story delivering the Supreme Court's decision held un- 
constitutional a Pennsylvania law interfering with the return 
of fugitive slaves. He not only held the State law unconsti- 
tutional, but also declared that the power of enacting legisla- 
tion providing for the return of fugitive slaves belonged 
exclusively to the national government. Chief Justice Taney 
concurred with the decision holding the Pennsylvania law 
contrary to the Constitution, but he dissented from the opin- 
ion that the power to legislate on the subject was exclusive in 
the national government. He thought the States were not 
prohibited from helping the owner to regain possession of his 
property if found in their territory, and in fact it was their 

^Article 4, Sec. 2, paragraph 3. 

34 The first fugitive slave law was passed in February, 1793. It gave jurisdic- 
tion to federal courts, and provided a fine of $500 for anyone obstructing the 
return of a fugitive slave. It passed the House of Representatives by a vote of 
48 to 7. Annals of the Congress of the United States, Second Congress, 1791- 
1793, PP- 861, 1414-15. 

^16 Peters, 539. 


duty to do so. The Constitution "contains no words pro- 
hibiting the several states from passing laws to enforce this 
right. ?):JG The words of the article would seem to make it 
the duty of the several States to pass laws to carry into 
execution the compact into which they solemnly entered with 
each other. 

The constitution of the United States ... is a part of the law of 
every state in the Union; and is the paramount law. The right 
of the master, therefore, to seize his fugitive slave, is the law of 
each state; and no state has the power to abrogate or alter it. And 
why may not a state protect a right of property, acknowledged by 
its paramount law? Besides, the laws of the different states, in all 
other cases, constantly protect the citizens of other states in their 
rights of property, when it is found within their respective terri- 
tories; and no one doubts their power to do so. And in the 
absence of any express prohibition, I perceive no reason for estab- 
lishing, by implication, a different rule in this instance. . . , 37 

In the case of Ableman v. Booih^ Taney had a chance to 
pass on the constitutionality of the fugitive slave law of 1850. 
Speaking for a unanimous court he held the law constitu- 
tional. However, the main issue involved was not the con- 
stitutionality of the law. The Supreme Court of Wisconsin 
had ordered a federal prisoner in the State set free on the 
ground that the law was contrary to the Constitution. In a 
ringing decision notable for its nationalistic tone, Taney de- 
nied the right of a State to interfere with the process o the 
federal courts. Within its delegated sphere of power the 
national government must be supreme, and free from inter- 

**Ibid., 627. 

37 Ibid.y 627. This is in harmony with his decision in the License Cases, $ 
Howard, 573 (1846). In. that decision, speaking of the commerce power, he said, 
". . . the mere grant of power to the general government cannot ... be con- 
strued to be an absolute prohibition to the exercise of any power over the same 
subject by the States." P. 579. 

88 21 Howard, 506 (1858). 


We have seen that Taney regarded slavery as an evil in- 
stitution, but one which would have to be abolished gradually. 
His attitude toward slavery as it touched the law should also 
be fairly clear after an examination of the opinions and de- 
cisions discussed in this chapter. As it existed, or was pro- 
hibited, within a State, slavery was wholly a matter for each 
State to deal with as it saw fit. The national government had 
no constitutional power to interfere in any way. As to slaves 
who fled to free States, the Constitution had authorized the 
national government to aid the owner in their capture and 
return. In the exercise of this power the national govern- 
ment could not constitutionally be hindered in any way by 
State legislation. In the exercise of their reserved powers 
the States were sovereign 5 in the exercise of its delegated 
powers the United States was sovereign. The Constitution 
was the supreme law of the land. Its division of powers must 
be scrupulously respected. 


Taney y s Opinion 

IN 1857 THE Supreme Court delivered its decision in the case 
of Dred Scott v. Sandford 1 holding that Dred Scott was a 
slave, that he was not a citizen of the United States, that a 
Negro could not be made a citizen, and that the national 
government had no power to prohibit slavery" In the Terri- 
tories. From the standpoint of technique in interpreting 
the Constitution as it was written, Taney's opinion In this case 
is one of the best that he ever wrote. To him the task at 
hand was simply to ascertain accurately the sovereign will as 
written into the Constitution, In order to do that he made a 
painstaking study of the conditions in America and In Europe 
not only at the time when the Constitution was written but 
before. Then he examined the laws of the States and the 
national government which would serve as an indication of 
the legislative interpretation of the Constitution after it was 
written. His decision of the questions Involved in the case 
was based on this thoroughgoing historical interpretation of 
the Constitution. 

Regardless of the soundness or unsoundness of Taney's 
interpretations, it seems to us now as we look back that his 
opinion was a blunder in statecraft. Designed to allay the 
conflict between North and South, the decision only embit- 
tered it, and brought the Supreme Court into disrepute In the 
dominant section of the country. In this, the only instance 
In which the Taney Court held an act of Congress unconstitu- 
tional, the Court almost seemed to go out of its way to per- 
petuate the inferior status of Negroes. In order to under- 

1 19 Howard, 393. 



stand why Chief Justice Taney, a Jacksonian democrat with a 
passionate regard for the interests of the common people, a 
personal distaste for slavery, and a consistent record of liberal- 
ism, should have been a party to such a decision one has to go 
back to the history of the period. 

The Historical Background of the Decision 

The Dred Scott decision was delivered at a time when the 
atmosphere between North and South was dangerously tense. 
Newspapers were stirring up the people, Senators and Rep- 
resentatives with tempers worn raw were talking openly on 
the floors of Congress of the possibility of Civil War. Affairs 
in Kansas were the immediate irritant. Slavery and anti- 
slavery forces were engaged in a desperate struggle over the 
Territory. In Kansas itself Northern partisans were shoot- 
ing, and being shot by, Southern partisans. 

Ever since the historic debates over the admission of Mis- 
souri in 1820 the question of slavery in the Territories and 
the admission of new States had been full of dynamite. The 
struggle over Missouri had led men to talk of the possibility 
of disunion. 2 Jefferson, as we have noted was one of those 
who was alarmed for the safety of the Union. In 1850, 
another crisis came, to be met with the temporary solution 
of the Compromise of 1850. Then came the Kansas question 
and the flames were fanned again. Each time the question of 
slavery in the Territories and the new States came up, it 
brought the country closer to disunion, for the divergence 
between the two sections continued to grow wider, and the 
possibility of compromise more difScult of achievement. 

The Kansas question with all its dangerous implications 
was thrust into the presidential campaign of 1856 because the 
leaders of the newly formed Republican party, regarding it 
as a vote-getting issue in the North, refused to compromise 

3 F. J. Turner, Rise of the New West, p. 169. 


on the question before Congress adjourned in the summer of 

that year. 3 The Democratic leaders, anxious to keep the 
question out of the campaign., declared that it might lead to 
Civil War. Senator Crittenden of Kentucky said, 

Do we not hear of preparations all around for feeding this little 
civil war in Kansas, sustaining it with money, supplying the parties 
with arms, and furnishing men to carry it on? ... Sir, this is 
the temper existing in the country at this time, and it tends greatly 
to increase apprehension, that while this policy is pursued merely 
for the purpose of carrying an election, it may collaterally have 
the fatal effect of stirring up civil war in the land. That once 
done in Kansas . . . one single spark may light up the whole 
atmosphere, and it may spread through this broad land. 4 

Senator Seward of New York replied, "Sir, it is not the 
character of the north star to change." And referring to the 
North of the United States, he continued, "You may resist if 
you will, but it will persevere peacefully, if you will suffer 
it to do so; but it will persevere constantly, nevertheless, in 
the extension of freedom in the Territories of the United 
States, and by its example in inducing the southern States to 
abolish slavery among themselves." 5 

The Republicans made "bleeding Kansas" their chief cam- 
paign issue. They resolved in their platform, "That the 
Constitution confers upon Congress sovereign power over the 
Territories of the United States, for their government, and 
that in the exercise of this power it is both the right and duty 
of Congress to prohibit in the Territories those twin relics of 
barbarism, polygamy and slavery." 6 

When the Democrats won the election there was a wide- 

3 Smith, op. cit.j p. 161. 

* Congressional Globe, 34th Cong., ist sess., pt. 2, August 28, 1856, pp. 58-59. 
See also remarks by Senator Benjamin, August 27, 1856, p. 46", and by Senator 
Bell, August 29, 1856, p. 71. 

5 Ibid., August 28, 1856, p. 61. 

8 W. S. Myers, The Republican Party, p. 67. 


spread feeling that disruption o the Union had been nar- 
rowly averted. In his last Annual Message to Congress 7 
President Pierce expressed his gratitude at the defeat of a 
party whose victory would have meant disunion. The people, 
he thought, had sustained the Constitution and rebuked sec- 
tionalism. Referring to the anti-slavery agitation he said: 

. . . associations have been formed in some of the States of indi- 
viduals who, pretending to seek only to prevent the spread of the 
institution of slavery into the present or future inchoate States of 
the Union, are really inflamed with desire to change the domestic 
institutions of existing States. . . . They are perfectly aware that 
the change in the relative condition of the white and black races 
in the slaveholding States which they would promote is beyond 
their lawful authority . . . the only path to its accomplishment is 
through burning cities, and ravaged fields, and slaughtered popula- 
tions . . . and that the first step in the attempt is the forcible 
disruption of a country . . . transforming the now peaceful and 
felicitous brotherhood into a vast permanent camp of armed men 
like the rival monarchies of Europe and Asia. 8 

This message started bitter argument in the Senate. Sen- 
ator Trumbull of Illinois criticized the President because at 
one point in his message he had asserted that the Missouri 
Compromise was unconstitutional. The Senator declared that 
the Supreme Court had said in so many words, in the case of 
American Insurance Company v. Canter* "that in regard to 
the Territories of the United States Congress possesses all the 
powers both of the Federal and State Governments as to a 
State. 3710 This, he said, meant that Congress had power to 
keep slavery out of the Territories. 11 

The Southerners were afraid that the agitation against 

7 Richardson, V, 397-417. The message was read to Congress December 2, 

9 Ibid., 398-99. 9 i Peters, 546 (1828). 

la Congressional Globe 3 34th Cong., 3rd sess., December 2, 1856, p. 15. 

^Ibid. 3 pp. 15-16. 


slavery in the Territories was merely the beginning of an at- 
tempt at the eventual abolition of slavery in the southern 
States/ 2 an attempt that could lead only to disunion. Senator 
Mason of Virginia was inspired with hope because in the elec- 
tion some of the northern States had united with the South 
"in keeping out of power a party whose success must neces- 
sarily have torn this Union into fragments." 13 A Senator 
from Alabama said, "They say they wish not to interfere with 
slavery in the States! . . . That may be true; but if agitation 
in regard to slavery in the Territories is to be carried on in 
these Halls for the purpose of destroying the peace and quiet 
of the country, they know the ultimate design is to affect this 
Government and this Union." 14 

Such was the setting when Dred Scott asked for his free- 
dom, raising in his plea the question of the status of slavery 
in the Territories. The lawyers of this obscure Missouri 
Negro raised questions which agitated again the issues which 
had brought on a national crisis. The case required cautious 
handling if it was not to widen the breach between the oppos- 
ing sections. It required almost superhuman wisdom more 
than the Court had. 

The Facts in the Case 

The facts in the case were as follows: 15 In 1834, Dred Scott 
was a slave belonging to Dr. Emerson, a surgeon in the 
United States army. In that year Dr. Emerson took him 
from Missouri to the military post at Rock Island, Illinois, 
and held him there as a slave until the spring of 1836. Then 
he took him to a military post in the Louisiana Territory 
north of 36 30' and held him in slavery until 1838. In 
1838 Dr. Emerson brought Scott back to Missouri, Before 

13 See remarks of Senator Brown of Mississippi, December 2, 1856, pp. 11-12, 

18 Ibid.y December 2, p. 13. 

14 Ibid., December 4, 1856, p. 24 (Senator Fitzpatrick). 

15 Dred Scott v. Sandford, 19 Howard, 397-98 (Dec. term 1856). 


the commencement of the suit Scott was sold to John F. A. 
Sandford. Scott first brought suit for his freedom in a State 
court in Missouri. When the case it-cached the State supreme 
court they held that he was not entitled to freedom. His 
attorneys then brought a suit for his freedom in the United 
States Circuit Court, and the case came from that court to 
the Supreme Court of the United States. 

The case was first argued before the Supreme Court in 
the spring of 1856. At that time the justices disagreed as to 
whether the question of Dred Scott's eligibility to sue in a 
federal court was involved. The case was reargued at the 
next term and the majority at that time decided that the 
question was not before them for consideration. The justices 
also discussed in conference the question as to whether or not 
the plaintiff's residence in territory north of 36 30', sup- 
posedly closed to slavery by the Missouri Compromise, had 
liberated him. They decided that this act of Congress did 
not \ liberate Dred Scott under the particular circumstances, 
and also that it was inoperative to free a slave in any case. 
The majority decided that the Court's decision should be 
limited to the particular circumstances of Dred Scott's case. 
The question of the constitutionality of the Missouri Com- 
promise provision for the abolition of slavery in the northern 
Territory was to be left untouched. Mr. Justice Nelson was 
selected to write the Court's opinion. 16 Unfortunately, this 
decision was not adhered to. 

Mr. Justice McLean let his colleagues know that he was 
going to write a long dissent giving his opinion and argu- 
ments on the Missouri Compromise and the right of a Negro 
to sue in the federal courts. 17 Justice McLean wanted to be 

16 Justice Campbell to S. Tyler, 1870, Tyler, op. cit. } pp. 382-84. Justice 
Grier to Buchanan February 23, 1857, The Works of James Buchanan, edited by 
J. B. Moore, X, 106-8 note. 

1T See Justice Grier's letter to Buchanan, February 23, 1857, The Works of 
James Buchanan, X, 107 note. 


president of the United States. It is said that a man who is 
once stung by the presidential bee never wholly recovers. 
This would seem to have been true in the case of McLean, 
He had been in a receptive mood since i833. 18 He tried un- 
successfully to get the Republican nomination in i856. 19 He 
was to try again in i86o. L>0 His action in the Dred Scott case 
may be taken as that of a candidate for the Republican 

McLean's proposed action^ and the fact that Justice Curtis 
also proposed to write a far-flung dissent^ caused the majority 
to change their minds as to the nature of their decision. They 
decided to embody in it a discussion of all the questions in- 
volved in the case, including the question of the constitu- 
tionality of a congressional prohibition of slavery in the Ter- 
ritories, and Chief Justice Taney was delegated to write the 
opinion. 21 

The Question of Jurisdiction 

In his opinion he first considered the question of whether the 
federal courts had jurisdiction over the case. In this connec- 
tion he discussed exhaustively the nature of American citizen- 
ship and how it is obtained. He then examined the facts in 
the case to see if they entitled Scott to freedom, coming to 
the conclusion that neither his stay in the northern Territory 
nor his residence in Illinois had made him free. 

In discussing the question of jurisdiction, Taney pointed 
out that the federal courts of the United States do not, as do 

^Ambrose Spencer wrote to Henry Clay, December 14., 1833, "From present 
appearances the contest on the part of our adversaries will be between Van Buren, 
Judge M'Lean, and Mr. Cass. . . . M'Lean's judicial course has been Jesuitical 
and trimming, and it will be a strong objection to him that he enters the arena 
with the robes of office on." The Private Correspondence of Henry Clay> edited 
by Calvin Colton, p. 372. 

19 W. S. Myers, op. cit., pp. 64-65. 

20 C. A. and M. R. Beard, Tke Rise of American Civilfaati(>n t II, 19. 

21 Justice Campbell to Tyler, 1870, Tyler, op. /,, p. 3845 Justice Grier to 
Buchanan, February 23, 1857, The Works of James Buchanan, X, 107, 


English and American State courts, presume that they have 
jurisdiction over cases brought before them. The cases in 
which they have jurisdiction are specified, and when a person 
brings suit he must show that his suit is within the jurisdiction 
of the court. If he seeks to bring suit in a federal court on 
the ground that he and the defendant are citizens of different 
States, he must show that such is the case. 22 

Citizenship in the United States 

This brought Taney to the question of Dred Scott's citizen- 
ship. As he saw it the question was simply, could a Negro 
whose ancestors had been slaves become an American citizen? 
Taney thought he could not. It seemed to him that such per- 
sons were not meant to be included under the word "citizen" 
as it was used in the Constitution. At the time the Constitu- 
tion was made they were considered an inferior class of beings 
who, whether emancipated or not, had only the rights and 
privileges which those who held the power might choose to 
give them. Whether this was just or unjust, said Taney, was 
not a matter for the Court to deal with. Their business was 
to apply the Constitution. 23 

Continuing the discussion of the subject he said that if 
Negroes were recognized as citizens at the time the Con- 
stitution was adopted they would become members of the 
new sovereignty created by it. 24 In the opinion of the Court 
the legislation and history of the times showed that neither 
the Negroes who had been imported as slaves nor their de- 
scendants, whether they became free or not, were then re- 
garded as part of "the people." Neither was the language 
of the Declaration of Independence meant to apply to them. 
Their status in the period when the Declaration of Inde- 
pendence and the Constitution were written was convincing 
evidence of that. Taney painted a vivid picture of it. 

22 Dred Scot V. Sandjord, 19 Howard, 401-2. 

28 Ibid.) 404-5. ^ Ibid.y 406. 


It is difficult at this day to realize the state of public opinion in 
relation to that unfortunate race, which prevailed in civilized and 
enlightened portions of the world at the time of the Declaration of 
Independence, and when the Constitution of the United States 
was framed and adopted. But the public history of every Euro- 
pean nation displays it in a manner too plain to be mistaken. 

They had for more than a century before been regarded as 
beings of an inferior order, and altogether unfit to associate with 
the white race, either in social or political relations; and so far 
inferior, that they had no rights which the white man was bound 
to respect; and that the negro might justly and lawfully be reduced 
to slavery for his benefit. 25 

Taney said that this view of the status of Negroes was 
impressed upon the colonies by England. As evidence that 
it* was the view of the colonists, he cited laws against inter- 
marriage between whites and blacks in Maryland and Mas- 
sachusetts at the time of the American Revolution. To him 
these laws showed u that a perpetual and impassable barrier 
was intended to be erected between the white race and the 
one which they had reduced to slavery . . . and which they 
looked upon as so far below them . . . that intermarriages 
. . . were regarded as unnatural and Immoral, and punished 
as crimes, not only in the parties, but in the person who joined 
them in marriage." And no distinction was made between 
free Negroes and slaves "but this stigma, of the deepest 
degradation, was fixed upon the whole race." 26 

That the States did not consider Negroes citizens after the 
Union was formed was evidenced by their court decisions and 
by the acts of their legislatures. In 1822, the Court of Ap- 
peals of Kentucky decided that free Negroes were not citizens 
within the meaning of the Constitution of the United 
States. 27 Courts in Tennessee and Connecticut announced the 
same doctrine. 28 Laws discriminating against Negroes were 

25 ibid., 4.07. 

27 md., 4.1 3. 


in force in Massachusetts., Connecticut, New Hampshire, and 
Rhode Island. 29 Even the national government had dis- 
criminated against them in the charter of the District of Co- 
lumbia as late as i820. 30 To Taney it seemed that persons 
so discriminated against could not have been regarded as 
members of the sovereign body politic, and he said: 

The legislation of the States therefore shows, in a manner not 
to be mistaken, the inferior and subject condition of that race at 
the time the constitution was adopted, and long afterwards . . . 
and it is hardly consistent with the respect due to these States, to 
suppose that they regarded at that time, as fellow-citizens and 
members of the sovereignty, a class of beings whom they had thus 
stigmatized; whom, as we are bound, out of respect to the State 
sovereignties, to assume they had deemed it just and necessary thus 
to stigmatize, and upon whom they had impressed such deep and 
enduring marks of inferiority and degradation ; or, that when they 
met in convention to form the constitution, they looked upon them 
as a portion of their constituents, or designed to include them in 
the provisions so carefully inserted for the security and protection 
of the liberties and rights of their citizens. It cannot be supposed 
that they intended to secure to them rights, and privileges, and 
rank, in the new political body throughout the Union, which every 
one of them denied within the limits of its own dominion. 31 

Taney thought that Negroes could never be made citizens 
under the Constitution as it stood. They could not be made 
citizens either by the States or the national government. A 
State might give an individual all the rights and privileges of 
citizenship within its own boundaries but "he would not be a 
citizen in the sense in which that word is used in the constitu- 
tion of the United States, nor entitled to sue as such in one o 
its courts, nor to the privileges and immunities of a citizen in 
the other States." 32 The power of naturalizing foreigners 
belongs exclusively to the national government but, said 

*> Ibid., 41 3-16. Ibid., 421. 

31 ibid., 416. w /***., 405. 


Taney, "It Is not a power to raise to the rank of a citizen any 
one born in the United States, who, from birth or parentage, 
by the laws of the country, belongs to an Inferior and subor- 
dinate class." 33 The States had surrendered the power to 
admit new members Into the sovereignty, and the national 
government had been given power to admit only aliens. 
Emancipated Negroes were thus condemned to stand outside 
the pale, as long as the Constitution remained unchanged. 

Slavery in the Territories 

The question of Dred Scott's right to sue was raised In a plea 
in abatement. There was doubt In the minds of some of the 
justices as to whether the question was legally before the 
Court. After he had decided that Scott was not a citizen of 
Missouri, and hence not entitled to sue in the federal courts 
on the basis of his citizenship, Taney said, "but if that plea is 
regarded as waived, or out of the case . . . yet the question 
as to the jurisdiction of the circuit court is presented on the 
face of the bill of exception itself. . . ." 34 He then pro- 
ceeded to discuss the facts of the case, considering first the 
effect of Dred Scott's stay in the Louisiana Territory north 
of thirty-six degrees and thirty minutes on his status as a 

The main question in this connection was the constitution- 
ality of the act of Congress which had prohibited slavery in 
the Louisiana Territory north of thirty-six degrees and thirty 
minutes north latitude. This provision had been embodied 
in what is generally known as the Missouri Compromise. 

Dred Scott's attorneys had claimed that Congress had 
power to abolish slavery in the Territories because of the 
article in the Constitution which confers on Congress power 
"to dispose of and make all needful Rules and Regulations 
respecting the Territory or other Property belonging to the 

88 Ibid., 417- */***., 427. 


United States." 35 In the judgment of the Court, said Taney, 
"that provision has, no bearing on the present controversy, 
and the power there given, whatever it may be, is confined, 
and was intended to be confined, to the territory which at that 
time belonged to, or was claimed by the United States, and 
was within their boundaries as settled by the treaty with 
Great Britain, and can have no influence upon a territory 
afterwards acquired from a foreign government. It was a 
special provision for a known and particular territory, and to 
meet a present emergency, and nothing more." 36 In order 
to establish this interpretation Taney discussed the history of 
the period when the article was written, the wording of the 
article, and a previous decision of the Supreme Court. 37 

His argument is ingenious, and perhaps convincing, if one 
assumes that the Fathers did not consider the possibility that 
the United States might acquire more territory. This is not 
an altogether unreasonable assumption, but to base on it an 
interpretation of a clause in the Constitution such as the one 
under consideration seems to be carrying the principle of strict 
construction rather far. 

It would have seemed consistent with this interpretation 
to decide that the Constitution did not authorize the federal 
government to acquire new territory, but Taney did not go 
that far. He said, "The power to expand the territory of the 
United States by the admission of new States is plainly given; 
and in the construction of this power by all the departments 
of the government, it has been held to authorize the acquisi- 
tion of territory, not fit for admission at the time, but to be 
admitted as soon as its population and situation would entitle 
it to admission." 38 

He thought that the power to acquire new territory was 
necessarily accompanied by the power to govern it. Hence 

55 Art. 4, Sec. 3, Paragraph 2. 3e i9 Howard, 432. 

* 7 Ibid., 43 2-4-6. * Ibid., 447. 


Congress could establish whatever government It considered 
best for such territory, to preserve it until it was ready for 
statehood. 39 But the power of Congress over the person, and 
property of citizens in the territory was not discretionary. 40 
All the constitutional guarantees of private rights applied 
there just as fully as in the States. Congress could not 
abridge freedom of religion, of speech, or of the press, nor 
deny to the people the right to bear arms or to trial by jury, 
nor in any other way assume power denied to it, or not given, 
by the Constitution. One of the constitutional safeguards of 
individual rights was the provision of the fifth amendment 
that no person should be deprived of life, liberty, and prop- 
erty, without due process of law. This particular provision it 
seemed to him, would prevent Congress from prohibiting 
slavery in the Territories. He said, "and an act of congress 
which deprives a citizen of the United States of his liberty or 
property, merely because he came himself or brought his 
property into a particular territory of the United States, and 
who had committed no offense against the laws, could hardly 
be dignified with the name of due process of law." 41 

The Constitutional Status of Property in Slaves 

It had been assumed by some that property in a slave was 
different from other property. It seemed to Taney an as- 
sumption without legal justification. The Constitution was 
the supreme law for the United States. The government of 
the United States was established, and certain rights of its 
citizens were guaranteed, by it. The government could not 
go beyond the power granted to it by the Constitution. No 
law of nations or reasoning of jurists on slavery or any other 
subject could add to the powers of the American government 
or take from the citizens the rights they had reserved. "And 
if the constitution recognizes the right of property of the 
d., 448-49. * ibid., 449- 41 #*-, 450. 


master in a slave, and makes no distinction between that de- 
scription of property and other property owned by a citizen, 
no tribunal, acting under the authority of the United States, 
whether it be legislative, executive, or judicial, has a right to 
draw such a distinction, or deny to it the benefit of the pro- 
visions and guarantees which have been provided for the 
protection of private property against the encroachments of 
the government." 42 

The Constitution, he pointed out, specifically recognized 
the right of property in a slave. "The right to traffic in it, 
like an ordinary article of merchandise and property, was 
guaranteed to the citizens of the United States, in every State 
that might desire it, for twenty years. And the government 
in express terms is pledged to protect it in all future time, if 
the slave escapes from his owner. . . . And no word can be 
found in the constitution which gives congress a greater power 
over slave property, or which entitles property of that kind to 
less protection than property of any other description. 3343 

State Laws and Slavery 

Having established the fact that Congress had no constitu- 
tional power to prohibit slavery in the Territories because 
such a prohibition would constitute a taking of private prop- 
erty without due process of law, Taney proceeded to consider 
the question as to whether or not Dred Scott 3 s stay in Illinois, 
a free State, established his freedom. 

The latter question did not require much discussion. The 
principle had been established in Strader et al. v. Graham^ 
where slaves had been taken from Kentucky into Ohio and 
back again, that the status of the slave depended on the law 
of the State that he was in. In the present case Dred Scott's 
status in Missouri depended on Missouri law, and not on the 
law of Illinois. The Supreme Court of Missouri had decided 

43 Ibid., 451. *lbid., 45i 452- u 10 Howard, 82 (1850). 


that he was a slave, and that decision was authoritative in 
deciding what was the law of the State. 4 *" 5 

Taney decided three things in his opinion: A Negro de- 
scendant of slaves could never become a citizen 5 Congress 
had no power to prohibit slavery in the Territories; and a 
slave taken into a free State for a temporary sojourn is not 
necessarily freed as a result, since his status depends on the 
law of the State that he is in. The latter point had been 
established in a previous case, and could meet with little 
objection. The two other principles announced were not only 
new so far as decisions of the Supreme Court were concerned, 
but they were also more open to objection. The fact that 
decision of these issues could have been avoided in this case 
lent strength to the objections. It was not necessary for the 
Court to decide that Negroes could never be citizens or to 
discuss the question of slavery in the Territories. Looking 
backward we can see that it would have been wiser for the 
Court to have avoided a decision on these highly controversial 
questions and to have based its decision solely on Dred Scott's 
status under State law. Chief Justice Taney was one of the 
majority and although not the leader in the move for a dis- 
cussion of these troublesome points, he must share the re- 
sponsibility for the Court's action. Since he wrote the main 
opinion of the majority he has in fact borne most of the 

The Constitution is the Recognized Expression of the 
Sovereign Will 

Taney's opinion is conservative and strict constructionist. 
Through it the Court proclaims that it will not take into 
consideration any change in conditions or attitudes, but will 
interpret the sovereign will only as it is constitutionally 
expressed. At one point Taney says: 

^ Tired Scott v. Sandford, 19 Howard, 4.52-54. 


No one, we presume supposes that any change in public opinion 
or feeling, in relation to this unfortunate race . . . should induce 
the court to give the words of the constitution a more liberal con- 
struction in their favor than they were intended to bear when the 
instrument was framed and adopted. ... If any of its provisions 
are deemed unjust, there is a mode prescribed in the instrument 
itself by which it may be amended ; but while it remains unaltered, 
it must be construed now as it was understood at the time of its 
adoption. It is not only the same in words, but the same in mean- 
ing . . . and as long as it continues to exist in its present form, 
it speaks not only in the same words, but with the same meaning 
and intent with which it spoke when it came from the hands of its 
framers, and was voted on and adopted by the people of the 
United States. Any other rule of construction would abrogate the 
judicial character of this court, and make it the mere reflex of the 
popular opinion or passion of the day. 46 

The Explanation for the Breadth of the Decision 

As we have already noticed, the immediate reason for the 
Court's decision to discuss the question of Negro citizenship 
and the constitutionality of the Missouri Compromise was 
the fact that Justices McLean and Curtis were going to deal 
with these questions in dissenting opinions. Under such cir- 
cumstances the majority felt called upon to express their 

But one must go farther than that in seeking an explana- 
tion for Taney's opinion and the conservative views expressed 
in it. Van Buren probably hit upon the truth when he wrote, 

I think it more likely that the judges who united in the opinion 
that the Missouri Compromise Act was unconstitutional, seeing the 
extraordinary revolution which its repeal had produced in the 
political and fraternal feelings of the people of the United States, 
and sincerely believing the safety of the Union endangered by 
continued agitation upon so disturbing a subject, hoped to arrest 
46 7^426. 


it by the judgment of the Supreme Court upon the point in ques- 
tion, a step which, if not actually called for, they yet believed 
fully justified by the case before them. 47 

Mr. Justice Grier ? writing to President-elect Buchanan, 
February 23, 1857, apparently referring to the question of 
the constitutionality of legislation barring slavery from the 
Territories, said that he and Mr. Justice Wayne and the 
Chief Justice "concur in your views as to the desirableness at 
this time of having an expression of the opinion of the court 
on this troublesome question. 5 ' 48 The country seemed on the 
verge of civil war. The question of slavery in the Territories 
was the outstanding cause of dissension. It had been a dan- 
gerous irritant since 1820, until now it seemed to have 
brought the Union to the verge of dissolution. Taney and 
his colleagues may reasonably have thought that by a judicial 
decision on the question they could remove it once and for 
all from the discussions of partisan politics. 

One must remember in this connection that Taney's view- 
point is that of a man from the upper South. The Aboli- 
tionists had preached violent doctrines, and the Republican 
party seemed to be taking over their program. Southerners 
looked beyond the asserted desire of the Republicans to bar 
slavery from the Territories and feared that they would 
eventually seek to destroy it in the States. The national 
government had no constitutional power to abolish slavery in 
the States, but the question had assumed a moral aspect, and 
those who are engaged in a holy war stop at nothing. In his 
opinion Taney spoke as one who seeks to preserve established 
rights and the spirit of the Constitution. The growth and 
the aggressive tactics of the anti-slavery party had the south- 
erners feeling that their backs were against the wall and their 

47 M. Van Buren, Inquiry into the Origin and Course of Political Parties^ 
p. 362. 

48 The Works of James Buchanan, X, 106-7. 


prosperity threatened and they were ready to fight when the 
issue was definitely made. Taney sought to save the Union 
by protecting property rights guaranteed in the Constitution. 
He proposed to settle the question by law and thus to prevent 
an appeal to arms. His spirit in this decision is that o Ed- 
mund Burke. Burke had a reverence for British political in- 
stitutions and the established rights of Englishmen which 
amounted almost to a religion. Something of this feeling, 
with an American setting, was reflected in the Dred Scott 
decision where Taney was speaking for established institutions 
and established rights, and for orderly constitutional change 
if change must come. This is interestingly illustrated in a 
supplement which he wrote to the Dred Scott case in which 
he spoke of the American Revolution as a conservative revolu- 
tion, much as Burke had justified the English revolution of 
1688 on conservative grounds. 

After asserting that the Declaration of Independence was 
not meant to include slaves Taney said: 

The American Revolution was not the offspring of fanaticism, 
nor was it produced by the wild theories of political dreamers. It 
was not designed to subvert the established order of society and 
social relations, nor to sweep away traditional usages and established 
opinions. On the contrary, it was undertaken to maintain ancient 
and established rights which had been invaded by the British Gov- 
ernment. The colonists claimed the rights of Englishmen, as 
secured by magnet, carta and the principles upon which the British 
Government was founded. They did nothing more. . . . The 
Declaration of Independence was intended to preserve their an- 
cient and established rights and privileges, and not to upturn their 
own social institutions and domestic relations. It was in fact in- 
tended as a conservative measure, and not as revolutionary, nor 
was it adopted in passion, but carefully, calmly, and deliberately 
considered. 49 

49 Tyler, op. ctf., p. 600. 


In the Dred Scott opinion Taney spoke as a lawyer. He 
endeavored to settle by judicial decision what debate in Con- 
gress and on the hustings could not settle but only disturb. 
He tried to avert the revolutionary disruption of a social and 
economic system. He was playing for high stakes, he played 
his trump card to maintain the old constitutional arrange- 
ments and prevent disunion and he failed. 

Public 0-pinion on the Decision 

The decision raised a storm of protest in the North. The 
New York Tribune speaking editorially said, "The decision, 
we need hardly say, is entitled to just so much moral weight 
as would be the judgment of those congregated in any Wash- 
ington bar-room. 5550 And a few days later, "It is the election 
of Mr. Buchanan which has emboldened our five slaveholding 
Judges to volunteer this extra-judicial proclamation of bar- 
barism and inhumanity as the staple of the United States 
Constitution. . . ." 51 

The legislature of Maine passed a resolution, "That the 
extra-judicial opinion of the Supreme Court of the United 
States, in the case of Dred Scott, is not binding, in law or in 
conscience, upon the government or citizens of the United 
States, and that it is of an import so alarming and dangerous, 
as to demand the instant and emphatic reprobation of the 
country." 52 The legislatures of Vermont, Ohio, and New 
York passed similar resolutions. 53 

In the Senate, William H. Seward made a bitter attack 
on the decision accusing the president and the justices of con- 
spiring to fasten slavery on the Territories. He denied the 
Court's decision had any validity, except as it applied to the 
immediate case. And he voiced the threat, "Let the court 

50 March 7, 1857. w March 13, 1857. 

53 E. W. R. Ewing, Legal and Historical Status of the Dred Scott Decision, 

p. 195- 

lbid.; pp. 189-94; The Case of Dred Sco$t in the Untied States, p. 104, 


recede. Whether it recedes or not, we shall reorganize the 
court, and thus reform its political sentiments and practices, 
and bring them into harmony with the Constitution and with 
the laws of nature." 54 

The South, on the other hand, hailed the decision as wise 
and just, and called on the nation to accept it as establishing 
the law. The Richmond Enquirer was typical of this view- 
point when it said, "Thus has a politico-legal question, involv- 
ing others of deep import, been decided emphatically in favor 
of the advocates and supporters of the Constitution and the 
Union, the equality of the States and the rights of the South, 
in contradistinction to and in ; ' repudiation of the diabolical 
doctrines inculcated by factionists and fanatics; and that too 
by a tribunal of jurists, as learned, imjpartial and unprejudiced 
as perhaps the world has ever seen. 7 ' 53 Three days later it 
said, "The decision in the Dred Scott case must be a finality, 
so far as federal legislation on the institution of slavery is 
concerned. . . . Abolitionism must now unmask, and wage 
its warfare openly and above board against the government 
$er se } or bow to its behests and pass off the stage." 56 

Taney's ppinion was not only bitterly attacked in the 
North, but it was also widely misrepresented. It was pro- 
claimed that he had stated it as his own opinion that Negroes 
had no rights which white men were bound to respect. 57 
This was, of course, not true. Yet even the New York legis- 
lature adopted a report containing such an assertion. 58 

As Taney watched the storm clouds swirl, while the 
lightning flashed around his head and the thunder rolled and 
reverberated, it reminded him of the Bank struggle of years 
before. In August he wrote to Franklin Pierce, "You see I 

54 Congressional Globe, March 3, 1858, p. 943. 

53 March 10, 1857. w March 13, 1857. 

57 Mary F. Taney, "Roger Brooke Taney," Records of the American Catholic 
Historical Society, XI, 39. 

58 The Case of Dred Scott in the United States, p. 104. 


am passing through another conflict, much like the one which 
followed the removal of the deposits, and the war Is being 
waged upon me in the same spirit and by many of the same 
men who distinguished themselves on that occasion by the 
unscrupulous means to which they resorted." But the criticism 
of his enemies was to him a relatively minor matter when he 
followed the path which he considered right, so he added, 
"And I have an abiding confidence that this act of my judicial 
life will stand the test of time and the sober judgment of the 
country, as well as the political act of which I have spoken." 59 

The Function of the Court as an Interpreter of the 
Sovereign Will 

A writer in one of the legal periodicals suggested a good 
many years ago that Taney's opinion regarding the political 
status of Dred Scott was in keeping with the sentiment of a 
majority of the people of his time, and that "In being led by, 
instead of leading the moral sentiment of the times and of 
the country in which he lived, Judge Taney did what the 
judiciary are doing now, and what, with rare exceptions, they 
have done in every age." co 

Taney did not regard it as the function of the Supreme 
Court to lead the moral sentiment of the times. To him the 
Court was only an agent of the sovereign whose duty it was 
to apply the sovereign will as constitutionally expressed. If 
the Constitution as written contained something which ought 
to be changed there was a method provided by which it could 
be changed, but that method was by constitutional amend- 
ment, not by judicial or legislative assumption of the people's 
power. In the Dred Scott case he was not concerned with 
the morality of slavery but with its legality. Finding slavery 
sanctioned by the Constitution he applied to it the same rules 

50 August 29, 1857, American Historical Review, X (1904-1905), 359, 
w "Roger B. Taney," The Chicago Law Times, II, 327. 


that would be applied to any other kind o property. And 
there cannot be much doubt that his application of the due 
process clause to prevent the abolition of slavery in the Ter- 
ritories would have met with little objection had the property 
in question been any other than human slaves. Mr. Justice 
Holmes not so long ago wrote into one of his decisions a 
warning which might well have been included in the Dred 
Scott opinion, when he said, "The general rule at least is, 
that while property may be regulated to a certain extent, if 
regulation goes too far it will be recognized as a taking. . . . 
We are in danger of forgetting that a strong public desire to 
improve the public condition is not enough to warrant the 
achieving the desire by a shorter cut than the constitutional 
way of paying for the change." 61 

The only objection which the student of political science 
or constitutional law can have to Taney's opinion is that it 
was unnecessary for the Court to deal with all the questions 
that were discussed. But the masterful art of evading issues, 
sometimes an attribute of statesmanship, was not one of 
Taney's strong points. He thought he saw the Union and 
the Constitution endangered by the question of slavery in the 
Territories, Believing that the whole controversy could be 
settled by constitutional law he wrote an opinion so thor- 
oughly and so logically worked out that he must have meant 
it to establish the meaning of the sovereign will so clearly 
that it would not again be called in question. 

^Pennsylvania Coal Co. v. Mahon et al. f 260 U. S. 415-16 (1922). 


The Legal 'Nature of Individual Rights 

THAT TANEY was not a radical Individualist is evidenced by 
his views of the police power which a State might exercise 
over its citizens, and by his decisions upholding national laws 
and court processes. That he was a democrat is evidenced by 
his part in the Bank struggle and his views expressed during 
that period. He believed in the sovereignty of the whole 
people and the supremacy of the law. He never asked 
whether a statute conformed to the laws of nature or not. 
He was concerned only with its constitutionality. When the 
rights of individuals were involved he went not to the law 
of nature, but to the Constitution, to find them defined. Hav- 
ing found them there defined, he could conceive of no legit- 
imate interference with them, save by the regular process of 
constitutional amendment. The Constitution was to him the 
supreme law of the land, binding alike on governors and 

During the course of his legal career Taney was connected 
with cases involving the right of free speech, the right of 
private property threatened in wartime, and the right to a 
writ of habeas corpus and a speedy and public trial by a jury. 
In each of these cases, from the time when he defended a 
Methodist minister's right to freedom of speech, until as an 
aged Chief Justice he delivered his memorable opinion in the 
case of Ex farte Merryman* he stood with almost religious 
zeal for individual rights as established by constitutional law. 
The rights involved are particularly significant in English 
law and particularly cherished by English speaking peoples. 

1 Campbell's Reports, 254. (1861). 


He" takes his ground in the tradition of Pitt and Burke and 
the other great leaders who defended the constitutional rights 
which Englishmen had won at great cost in a long struggle 
with reluctant kings. 

Free S-peech 

Taney's first important case in this group was that involving 
Reverend Jacob Gruber's right to freedom of speech in 1819, 
a case already alluded to in connection with the discussion of 
Taney's views on slavery. Reverend Gruber, a Methodist 
minister from Pennsylvania, delivered a sermon to a camp 
meeting in Washington County, Maryland in which he 
strongly condemned the institution of slavery. 2 In view of 
the fact that a considerable proportion of his audience were 
slaves, his language was regarded, not without reason, as be- 
ing highly incendiary. He was indicted and charged with 
preaching this sermon with the intent of inciting slaves to 
insurrection, and for the disturbance of the peace. One of his 
friends prevailed on Taney, then recognized as one of the 
leading lawyers of Maryland, to appear as his chief counsel. 3 
Taney's plea to the slaveholding jury who sat in judgment 
on the case of this Pennsylvania Abolitionist is notable for its 
boldness. He opened his argument with a defense of free 
speech, which is largely quoted in the paragraph that follows. 

I need not tell you that, by the liberal and happy institutions of 
this state, the rights of conscience and the freedom of speech are 
fully protected. No man can be prosecuted for preaching the arti- 
cles of his religious creed, unless, indeed, his doctrine is immoral, 
and calculated to disturb the peace and order of society; and sub- 
jects of national policy may at all times be freely and fully dis- 
cussed, in the pulpit or elsewhere without limitation or restraint. 
If his doctrines were not immoral, if the principles he maintained 
were not contrary to the peace and good order of society, he had an 

2 W. P. Strickland, The Life of Jacob Gruber, pp. 136-39. 
3 Ibid. j p. 140. 


undoubted right to preach them, and to clothe them in such lan- 
guage, and enforce them by such facts and arguments as to him 
seemed proper. It would be nothing to the purpose to say that 
he offended, or that he alarmed some ? or all of his hearers. Their 
feelings, or their fears, would not alter the character of his doc- 
trine, or take from him a right secured to him by the constitution 
and laws of the state. 4 

A lawyer's plea for his client cannot always be taken as 
an expression of his personal beliefs- However, in this in- 
stance Taney said that he himself was willing to say the same 
things Reverend Gruber had said, 5 and as his plea was in har- 
mony with statements which he made on other occasions it is 
fair to assume that his plea for freedom of speech represents 
his own viewpoint. It seems hardly the sort of plea a man 
would make to a slaveholding jury if he did not believe what 
he was saying. 

Taney's defense of the right of free speech rested on the 
provisions of the constitution and the laws of the State. He 
asserted the complete right, under them, of the individual to 
preach his religious doctrines and to discuss political questions. 
But the right of free speech was not something absolute to 
him. It was a right given by law. It could be limited by 
law. There was no right to preach immoral doctrines or to 
disturb the peace and order of the community. It is always 
difficult to define the limits of free speech in times when the 
privilege really means something. Undoubtedly there would 
be occasions when it would have been difficult to decide what 
words constituted a disturbance of the peace by Taney's 
criterion. The fact that he, a Southerner, defended the right 
to free speech of a man who had preached abolitionism to four 
hundred Negro slaves is evidence that he would scrupulously 
respect the spirit of the constitutional guarantees of individual 
rights. Of course the preacher in this instance probably 

*/&, pp. 155-56. *lbuL, p. 168. 


meant to influence the slave owners more than the slaves, but 
such is the frailty of human nature that men often forget 
such details when their economic interests are threatened. 

Property Rights in Time of War 

The other cases which we shall consider in this connection 
involved individual rights endangered by the arbitrary acts of 
government officials in wartime, rather than as a result of a 
threat to the economic order. Two of them dealt with 
property rights ignored during the war with Mexico. The 
other involved the right of a citizen to a writ of habeas corpus 
and to judicial trial, denied by military authorities in the 
Civil War. 

In 1849, i* 1 the case United States v. Guillen^ Taney 
revealed his sympathy with the needs of a laboring man who 
had been caught in the net of war in a foreign country. He 
cut through legalism to find the spirit of the law in order to 
help a man who had done no wrong and had no hostile intent. 

Guillem was a French citizen who had lived in Mexico 
about three years working as a cook in a hotel. He was re- 
turning to France with his family when the ship on which 
they were sailing was seized by the American blockading 
forces. He had with him his savings of $2,860. This money, 
with the other property on board, was held by the American 
officers of the blockading squadron, and the passengers and 
crew were turned loose. 7 The case came to the Supreme 
Court on appeal. 

Taney held that as soon as Guillem sailed from Vera 
Cruz, he lost his hostile character as a resident of Mexico and 
resumed his character as a French citizen with its rights and 
privileges of a neutral. In regard to his money, the decision 
called attention to the fact that it was not shipped as cargo or 
for trading purposes. "It . . . was the earnings of his in- 

c n Howard, 47. * Ibid., 60. 


dustry in Mexico., and was taken with him for the support of 
himself and his family upon their return to France." 8 But 
the appellants insisted that even though the property be- 
longed to a neutral it was subject to condemnation as having 
been shipped in violation of the blockade and because of the 
character of the vessel. Guillem had sailed on a merchant 
ship which had attempted to break the blockade. The block- 
ade had been opened to allow neutrals to leave Mexico on 
the warships of their respective countries, but merchant ships 
had not been given permission to enter or leave. 

Taney was not content to stop with the terms of the order. 
He went behind it to find its purpose, and the reasons for the 
distinction made between warships and merchant ships. He 
pointed out that the privilege of carrying out passengers had 
been confined to ships of war because it was assumed that 
they would not allow it to be abused. The object of the 
order was to allow neutrals to leave the enemy's country and 
return to their own if they so desired. The neutral was not 
required or expected to remain on the warship. The warship 
was merely his means of escape from a country about to be 
made the scene of fighting. Permission to escape necessarily 
carried with it permission for the neutral to take with him 
the means of supporting himself and his family on the voyage 
and after they returned home. It was no breach of blockade 
for Guillem to take his savings with him, and the fact that 
he attempted to leave on a merchant ship liable to seizure did 
not implicate him in the guilt of the vessel. Taney's sympa- 
thetic appreciation of his position is shown by his statement 

Guillem must without doubt have seen citizens of neutral nations 
daily leaving the city for the ships of war, and taking with them 
the necessary means of support for themselves and their families. 
He appears to have done nothing more than avail himself of the 
id. t 60. */#&, 60, 6 1. 


most convenient opportunity that offered in order to accomplish 
the same object. . . . And in taking his passage in The Jeune 
Nelly, his Intention, as far as it can be ascertained from the testi- 
mony, was merely to return to his own country, in a mode better 
suited to his humble circumstances and more convenient to his 
family, than by passing through the ships of war. 10 

In this decision Taney gave to the rules o blockade issued 
by American officials a liberal meaning in harmony with the 
principles of justice. No appreciable benefit would come to 
the United States from the seizure of an innocent laborer's 

Government officials were presumed to act for the benefit 
of the United States, and, unless the nation would benefit, an 
individual, even though a citizen of another country, should 
not summarily be deprived of his property under the guise 
of the war power. Taney was too steeped in the principles 
of the common law to look with favor on the destruction of 
private property rights by administrative orders. 

In 1851, another case involving property seized by Amer- 
ican military forces during the Mexican War came before the 
Court. 11 A trader named Harmony in company with other 
traders had followed in the rear of the American army invad- 
ing Mexico. These men were allowed to trade freely in the 
areas subdued and occupied by the American forces. After 
the army entered Chihuahua, Harmony desired to leave it, 
but was forced by the commanding officer to accompany the 
army with his property. In the course of battle and on the 
march his wagons and mules were used by the army. Many 
of his mules were killed. Failing in his efforts to sell what 
remained of his property, he was forced to leave it behind 
when he finally left Mexico. He then brought suit against 
Colonel Mitchell, the officer who had executed the order 
10 md., 62. 

^Mitchell v. Harmony j 13 Howard, 115. 


forcing him to accompany the army after he had expressed 
his desire to leave it. 

Early in the decision of the case, Taney called attention 
to the fact that Harmon}' had been engaged in trade sanc- 
tioned not only by the American military commander, but 
also by the Executive Department of the government. While 
it was true as a general rule that no citizen could lawfully 
engage in trade with the enemy the rule did not apply in a 
case of this kind. And he continued, "nor can an officer of 
the United States seize the property of an American citizen^ 
for an act which the constituted authorities, acting within the 
scope of their lawful powers, have authorized to be done." 12 

Colonel Mitchell claimed justification mainly on the 
ground that rumors had reached the commanding officer that 
Harmony meant to carry on an illicit trade with the enemy 
which would be harmful to the interests of the United States 
when he left the American army. Taney said that the seizure 
and detention of his property would have been justified if 
such a design had been proved. But there was no evidence in 
the record tending to show that the rumors had any founda- 
tion. "And certainly mere suspicions of an illegal intention 
will not authorize a military officer to seize and detain the 
property of an American citizen." 13 

The fact that the army was away from home and in the 
enemy's country did not justify the commanding officer. Such 
circumstances could not enlarge his power over the property 
of a citizen. "And where the owner has done nothing to 
forfeit his rights, every public officer is bound to respect them, 
whether he finds the property in a foreign or hostile country, 
or in his own." 14 Taney admitted that there were occasions 
when private property might lawfully be taken or destroyed 
to prevent its falling into the hands of the enemy. In such 
cases the government was bound to make full compensation 

12 Ibid., 133. *md., 133- "/*#-, *34- 


to the owner, but the officer was not liable for damages. His 
standard of judgment as to when such cases arose was clean 
cut and strict. He said, "But we are clearly of the opinion, 
that in all of these cases the danger must be immediate and 
impending j or the necessity urgent for the public service, 
such as will not admit of delay, and where the action of the 
civil authority would be too late in providing the means 
which the occasion calls for. ... It is the emergency that 
gives the right, and the emergency must be shown to exist 
before the taking can be justified." 15 

It is evident from these decisions that Taney would hold 
administrative officers strictly within the limits of the law, 
where individual property rights were concerned. We have 
already noticed his tendency to follow the spirit of English 
law protecting individual rights. In the case of Mitchell v. 
Harmony his enunciation of the law is notably in the English 
tradition. It is an established rule in England that adminis- 
trative officers are personally liable for acts in excess of their 
authority. 16 The law, not the officers of the law, is supreme. 
Taney believed that this doctrine should apply in time of war 
as well as in time of peace. Officers of the army had no more 
legal power to ignore individual rights than had other officials. 
The army must be subordinate to the civil authorities. The 
individual was secure until judged punishable by the regular 
processes of the law. 

Taney recognized the existence of emergency power. It 
is sometimes difficult to tell just when an emergency justifies 
the taking of private property for the public good. Taney 
thought that there were times when the administrative officer 
would have to use his judgment and if need be submit his 
case to a jury. If he had had good ground for believing that 
an emergency was so pressing as to justify the taking of 

16 See A. V. Dicey, Law of the Constitution^ Chap. 4. 


private property he might go ahead, but if his power was 
questioned he would have to convince the jury that he had 
acted on reasonable grounds. 17 Such a rule has a wholesome 
effect on administrative officers who may sometimes become 
so obsessed with their own duties and powers that they forget 
the rights of the people whose servants they are. If the 
liberties of the people are to be secure, emergency power 
must be carefully limited. Taney did not allow even the 
exigencies of war to blind him to these elemental facts. 

The Case of John Merry man 

The most important of the cases involving individual rights, 
with which Taney was connected, was the case of Ex farte 
Merryman. 13 In his opinion in that case he held that the 
President had no power to suspend the privilege of the writ 
of habeas corpus. His opinion was delivered at a time when 
war feeling was running high, and it was in direct opposition 
to a war measure of the President. Under such circumstances 
it was inevitable that it should cause tremendous reverbera- 
tions. The Abolitionists, who had not quite forgotten the 
Dred Scott decision, were aroused again. That Taney should 
have delivered such an opinion at such a time was additional 
evidence that he was utterly oblivious to public opinion or his 
personal fate when a principle was involved. In this case he 
considered the issue one of the most vital importance. It was 
a question of protecting the individual's right to live under a 
rule of law. 

The facts in the case were as follows: John Merryman, a 
citizen of Baltimore, while peacefully sleeping in his home 
was aroused at two o'clock one morning in May, 1 86 1, by an 
armed force. These soldiers got him out of bed and took 
him to Fort McHenry where he was imprisoned without 

17 Mitchell v. Harmony, 13 Howard, 135-37- 
^Campbell's Reports, 246 (1861). 


warrant from any lawful authority. He applied to Chief 
Justice Taney for a writ of habeas corpus. Taney, sitting in 
Baltimore on circuit, granted the writ. When the writ was 
served on the commander of Fort McHenry he refused to 
obey it. As Taney said, "... it is not alleged in the re- 
turn, that any specific act, constituting any offence against the 
laws of the United States, has been charged against him upon 
oath, but he appears to have been arrested upon general 
charges of treason and rebellion, without proof, and without 
giving the names of the witnesses, or specifying the acts 
which, in the judgment of the military officer constituted 
these crimes." 19 The general in command at Fort McHenry 
asserted that he had been authorized by the President to sus- 
pend the right to the writ of habeas corpus in such cases. 
Taney knew that the United States marshal acting under the 
direction of the court could not summon any force strong 
enough to take the prisoner away from the army. He wrote 
out his opinion and ordered it filed and all the proceedings 
laid before the President. 20 

The Writ of Habeas Corpus Could lye Constitutionally 
Suspended only by Congress 

He said, as the case came before him, it seemed that the 
President not only claimed the right to suspend the writ of 
habeas corpus himself, but also the right to delegate the 
power to a military officer and allow him to decide whether 
he would or would not obey any judicial process served upon 
him. This, Taney said, was a surprising doctrine, for he had 
supposed it admitted by all that the writ of habeas corpus 
could not be suspended except by act of Congress. 21 

He then proceeded to establish the point that the privilege 
to the writ could not be suspended, save by Congress. He 

lt>id. t 254-S5- * Tyler, op. cit., p. 645. 

21 Campbell's Reports, 255. 


pointed out that the clause in the Constitution which author- 
izes the suspension of the right to the writ was in a section 
of an article devoted to the legislative department^ and with- 
out the slightest reference to the executive department. 22 
After enumerating the powers of Congress the authors of the 
Constitution, in order to be sure that Congress should not 
interfere with certain fundamental rights of individuals or 
with the powers of the States, placed certain specific limita- 
tions on the powers of Congress. The provision that the writ 
of habeas corpus should not be suspended except when in cases 
of rebellion or invasion the public safety required its suspen- 
sion was among these limitations. 23 

Taney also pointed out that the second article of the Con- 
stitution, which provided for the organization of the executive 
department and defined its powers, contained nothing which 
could be construed as giving the President power to suspend 
the writ of habeas corpus. The President had no power to 
arrest anyone whom he might believe guilty of an offense 
against the laws, nor could he authorize any officer to exercise 
such a power. The fifth amendment expressly provided that 
no person should be deprived of life, liberty, or property 
without due process of law, which Taney said, a is, judicial 
process." 24 

He also asserted that in case the privilege of the writ 
should be suspended by Congress and an individual was ar- 
rested he could not be held in prison or tried before a military 

32 Sec. 9 of Art. I. Article I begins, "All legislative Powers herein granted 
shall be vested in a Congress of the United States, which shall consist of a Senate 
and House of Representatives." The whole article deals with Congress, except 
section 10, which contains the limitations on the powers of the States. Section 9 
begins, "The Migration or Importation of such Persons as any of the States now 
existing shall think proper to admit, shall not be prohibited by the Congress. ... 

"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless 
when In Cases of Rebellion or Invasion the public Safety may require it. 

"No Bill of Attainder or ex post facto law shall be passed." 

28 Campbell's Reports, 256-57. 

u lbid. } 258-59. 


tribunal. The Constitution guarantees him the right to a 
speedy and public trial by an impartial jury, the right "to be 
informed of the nature and cause of the accusation j to be 
confronted with the witnesses against him, to have com- 
pulsory process for obtaining witnesses in his favor 5 and to 
have the assistance of counsel for his defence." 25 

In support of his contention that only Congress might 
constitutionally suspend the privilege of the writ of habeas 
corpus, Taney relied not only upon reason but also cited 
authorities. He traced the history of the writ of habeas 
corpus in England and quoted Blackstone, showing that it was 
a settled principle of English law that only Parliament could 
suspend the right to the writ. 26 But he did not have to de- 
pend on English law alone. He quoted from "the late Mr. 
Justice Story" whom he referred to as "not only one of the 
most eminent jurists of the age, but for a long time one of the 
brightest ornaments of the supreme court of the United 
States." Mr. Justice Story had assumed that the power of 
suspending the writ of habeas corpus in America belonged to 
Congress. 27 Then he quoted from the decision in Ex parte 
Bollman* 8 to show that Marshall also held that the power 
belonged to Congress. 29 

Military Dictatorship 

While it seemed to Taney that the suspension of the privilege 
of the writ of habeas corpus by the military authorities was a 
lawless act, he also felt that the situation was made even 
more serious because other constitutional provisions had been 
ignored. The military authorities had forcefully thrust aside 
55 ibid., 259-60. 

26 Ibid., 261-65. He quotes from Blackstone's Commentaries, I, 137 and III, 

27 Campbell's Reports, 265-66. He quotes from Story's Commentaries, vol. Ill, 
sec. 1336 (Taney referred to section 1336; in the 5th ed. it is sec. 1342.) 

^4 Cranch, 95, 101. * Campbell's Reports, 267. 


the judicial authorities whose function it was to administer 
the law and had substituted a military government in its 
place. 30 All this was without any reasonable excuse., it seemed 
to him. For , 

Up to that time, there had never been the slightest resistance or 
obstruction to the process of any court or judicial authority of the 
United States, in Maryland, except by the military authority. 
And if a military officer, or any other person, had reason to believe 
that the prisoner had committed any offence against the laws of 
the United States, it was his duty to give information of the fact 
and the evidence to support it, to the district attorney; . . . There 
was no danger of any obstruction or resistance to the action of the 
civil authorities, and therefore no reason whatever for the inter- 
position of the military. 31 

After reiterating that the Constitution contained guaran- 
ties to the individual against deprivation of life, liberty? or 
property without due process of law, against unreasonable 
searches and seizures, against arrest without legal warrant, 
and guaranteed him a speedy trial in a court of justice, Taney 
said, "These great and fundamental laws, which congress 
itself could not suspend, have been disregarded and sus- 
pended, like the writ of habeas corpus, by a military order, 
supported by force of arms." Under such circumstances it 
seemed to him that the people were living not under a 
government of law, but under a military dictatorship. 32 

Believing as he did in a government of law, Taney looked 
with abhorrence on anything that savoured of military rule. 
Speaking of the acts which had led to the Merryman case he 

30 Ibid., 267. 

31 Ibid., 268. Compare with Ex parts Milligan, 4 Wallace, 123 (1866), in 
which, after referring to persons in the military service, the Court says, "All other 
persons, citizens of states where the courts are open, if charged with crime, are 
guaranteed the inestimable privilege of trial by jury." And on p. 127, "Martial 
rule can never exist where the courts are open, and in the proper and unobstructed 
exercise of their jurisdiction." 

32 Campbell's Reports, 268-69. 


declared, "... I can only say that if the authority which 
the constitution has confided to the judiciary department and 
judicial officers, may thus, upon any pretext or under any 
circumstances, be usurped by the military power, at its discre- 
tion, the people of the United States are no longer living 
under a government of laws, but every citizen holds life, 
liberty and property at the will and pleasure of the army 
officer in whose military district he may happen to be 
found." 33 Shortly after delivering this opinion he wrote to 
Franklin Pierce, "I hope that ... the North, as well as the 
South, will see that a peaceful separation, with free institu- 
tions in each section, is far better than the union of all the 
present states under a military government, and a reign of 
terror preceded too by a civil war with all its horrors, and 
which end as it may will prove ruinous to the victors as well 
as the vanquished." 34 If the Union could be saved only by 
the sacrifice of constitutional liberty it was too great a price 
to pay. 

The Issue of Law Against the Necessity of War 

The issue was one of law against supposed military necessity. 
This was admitted by some of the critics of the Merryman 
opinion. The New York Times said, "The majesty of the 
law must, in all cases, succumb to the necessities of war." 35 
At the same time The World said, "A refusal to obey the 
writ of habeas corpus, when its suspension has not been au- 
thorized by Congress, is of course illegal 5 the only question 
is, whether the public exigency is sufficient to justify it, and 
each case must depend for its justification on its own peculiar 
circumstances." 36 

Taney's opinion upholding the regular processes was in 

., 269. 

3 * Written June 12, 1861. American Historical Review, X (1904-1905), 368. 
35 May 29, 1861. 86 May 29, 1861. 


harmony with the established principles of English and 
American law. As he pointed out, he was adhering to the 
law as interpreted by Blackstone in England and Marshall 
and Story in the United States. 37 One modern English 
writer has aptly said that the privilege of the writ of habeas 
corpus "is perhaps, the ark of the covenant in the Anglo- 
American conception of freedom." 38 Any attempt to justify 
executive suspension of the writ from the standpoint of con- 
stitutional law is like trying the magician 5 s trick of pulling 
rabbits out of a hat. 39 W. W. Willoughby says, "That 
Taney's reasoning is correct there would now seem to be little 
question." 40 The supporting evidence for Taney's position 
was perhaps marshalled most thoroughly by David Dudley 
Field, counsel for Milligan, in the case of Ex farte Milligan 4 ' 1 
in 1866. 

In the decision of the Milligan case the Supreme Court 

The proposition is this: that in a time of war the commander of an 
armed force . . . has the power, within the lines of his military 
district, to suspend all civil rights and their remedies . . . and in 
the exercise of his lawful authority cannot be restrained, except by 
his superior officer or the President of the United States. . . . The 

37 It seems to have been generally accepted among the early legal authorities 
that only Congress could suspend the writ of habeas corpus In the United States. 
St. George Tucker is an early authority who might have been cited along with 
Marshall and Story. He said in his Blackstone's Commentaries, u ln England the 
benefit of this important writ can only be suspended by authority of parliament. 
... In the United States, it can be suspended, only by the authority of congress? 
but not whenever congress may think proper; for it cannot be suspended, unless in 
cases of actual rebellion, or invasion." Vol. i, Appendix, note D, p. 292. 

88 H. J. Laski, Liberty in the Modern State, pp. 51-52. 

39 For such an attempt see Joel Parker, Habeas Corpus and Martial Law 

40 The Constitutional Law of the United S fates, III, 1615. J. R. Tucker in The 
Constitution of the United, States t II, 643, says, "What Federal authority can sus- 
pend this privilege? The answer is distinct: No power but Congress can suspend 
itj the President cannot." 

41 4 Wallace, 2. 


statement of this proposition shows its importance; for, if true, 
republican government is a failure, and there is an end of liberty 
regulated by law. . . . Civil liberty and this kind of martial law 
cannot endure together; the antagonism is irreconcilable; and, in 
the conflict, one or the other must perish. ... If this were true, 
it could be well said that a country, preserved at the sacrifice of 
all the cardinal principles of liberty, is not worth the cost of 
preservation. Happily, it is not so. 42 

Five years after Ex parte Merryman the Supreme Court 
was voicing Taney's doctrine in language even more compel- 
ling, if possible, than he had used. As the historian of the 
Court has said, "Never did a fearless Judge receive a more 
swift or complete vindication." 43 

The whole question of how far a government may go in 
ignoring individual rights in wartime is intimately connected 
with the theory of the location of sovereignty and the man- 
ner of its expression which is accepted. As we have already 
noticed. Chief Justice Taney believed that sovereignty rested 
in the people of the United States, 44 that they had spoken 
authoritatively in the Constitution, and that the provisions of 
the Constitution must be supreme until changed by the reg- 
ular prescribed method. 45 The government was not sov- 
ereign. It could not change the Constitution or ignore its 
provisions in any particular. Such a theory, if accepted, 
might set up irritating restraints on governmental action in 
time of war, because in war quick and drastic action is some- 
times necessary. At times the Constitution seems to stand in 
the way of an apparently desirable war policy. The Consti- 
tution contains definite restraints on governmental action, and 
the Constitution is rather difficult of amendment; at any rate 
the process prescribed is not a rapid one. If the sovereign can 

42 Ibid.) pp. 124-26. 

43 Charles Warren, The Supreme Court, in United, States History, II, 374. 

44 Dred Scott <u. Sandjord, 1 9 Howard, 404. 

45 Ableman v. Booth, 21 Howard, 525. 


make its will known in no other way the government may be 
embarrassed in time of crises, unless it chooses to ignore the 

While Taney's theory, a heritage from established Anglo- 
American law, has been generally accepted by American 
jurists, it is possible that it is too idealistic to meet with gen- 
eral acceptance in times of crisis. The German philosopher 
Hegel believed that sovereignty, although possibly the at- 
tribute of the state in theory, was in reality voiced in the final 
decisive expression of an individual will. 46 More recent 
writers have contended for the kindred doctrine that, for 
practical purposes, the government is the sovereign. 47 In 
time of w r ar this conception seems to guide American practice. 
The government, by tacit consent, rules with scant regard 
for the constitutional limitations which purport to protect the 
individual. Perhaps the sovereign people may speak in other 
ways than by amending the Constitution. 

There are those w r ho believe that war justifies the suspen- 
sion of law, if such suspension will apparently further the 
ends of war. Treitschke was representative of a large group 
of German thinkers in holding that political rights existed 
not for the sake of the individual, but for the sake of the 
state, 48 and when its very existence was at stake the state 
might suspend the rights of its citizens. 49 Treitschke was 
thinking of the government as acting for the state In such an 
emergency. Such theories are not at all peculiar to German 
thinkers. We have already called attention to the fact that 
the New York Times and The World unhesitatingly ad- 
mitted that Lincoln's suspension of the writ of habeas corpus 

48 HegePs Philosophy of Right, translated by S. W. Dyde, Sec. 279, pp. 286-91. 

47 H. J. Laski, A Grammar of Politics, p. 1455 Z. Chaffee, Freedom of Speech, 

PP- 375-76. 

48 H. W. C. Davis, The Political Thought of Heinrlch von Treitschke, p. 49. 
48 Heinrich von Treitschke, Politics, translated by B. Dugdale and T. DeBille, 

I, I56-57' 


was illegal but they justified it on the ground of military 
necessity. The World War led to the expression of similar 
ideas. One writer in 1918 asserted that there were practically 
no limitations on the war power of the American govern- 
ment. 50 He said that the war leaders would use every means 
they thought necessary for winning the war whether they 
were constitutional or not, and that it would be wise to accept 
an interpretation of the Constitution which would make it 
elastic enough to allow everything. The theory has also been 
advanced that individual rights are relative, not absolute 
goods, and if they are less useful to society in war than in 
peace they will receive less protection. 51 

Such views are in direct contradiction to those held by 
Taney. To him the Constitution was the supreme law in 
war as well as in peace. In a paragraph that reveals some of 
the most important principles in his political theory he said: 

Nor can any argument be drawn from the nature of sovereignty, 
or the necessity of government, for self-defence in times of tumult 
and danger. The government of the United States is one of 
delegated and limited powers ; it derives its existence and authority 
altogether from the constitution, and neither of its branches, 
executive, legislative or judicial, can exercise any of the powers of 
government beyond those specified and granted; for the tenth 
article of the amendment to the constitution, in express terms, pro- 
vides that "the powers not delegated to the United States by the 
constitution, nor prohibited by it to the states, are reserved to the 
states, respectively, or to the people." 52 

As Taney saw it, the sovereign had spoken, its will was 
written into the Constitution, and its will was law. 

That Taney's theory was representative of the sound judi- 

60 H. J. Fletcher, "The Civilian and the War Power," Minnesota Law Review, 
II (1918), 110-31. 

1 J. P. Hall, "Free Speech in War Time," Columbia Law Review, XXI 
1), 537- 
52 Campbell's Reports, 26061. 


clal thought of his time would seem indicated by the decision 
of the Supreme Court in Ex parte Milligan already alluded 

to. In that decision, when the Civil War was hardly more 
than ended, the Court, by then composed largely of Repub- 
licans, asserted that "The Constitution of the United States 
is a law for rulers and people, equally in war and in peace, 
and covers with the shield of its protection ail classes of men, 
at all times, and under all circumstances." 53 The Supreme 
Court of Illinois reiterated the doctrine in 1867, saying, "The 
doctrine that a state of w r ar of itself suspends, at once and 
everywhere, the constitutional guaranties for liberty and prop- 
erty, finds no support in the Constitution, and is inconsistent 
with every principle of civil liberty and free government. 5 ' 54 

The Background of Taney's Theory 

Taney's fervent belief in the supremacy of the law was prob- 
ably an inheritance from English thought. Englishmen have 
long regarded the reign of law with the same fervor Taney 
did. Their feeling is largely a result of the traditions of 
British freedom. It is probably strengthened when as young 
men at Oxford they read Aristotle and find him saying, "To 
invest the law then with authority, is, it seems, to invest God 
and intelligence only . . - even the best of men in authority 
are liable to be corrupted by anger. We may conclude then 
that the law is intelligence without passion and is therefore 
preferable to any individual." 55 Edmund Burke, bitter op- 
ponent of the radical natural rights philosophy of revolu- 
tionary France, thought that the right to live by a rule of law 
was a natural right of men. 50 Englishmen have not yet for- 
gotten the doctrine. In the midst of the World War Earl 

53 4 Wallace, 120, 121 (1866). 

54 Johnson v. Jones ef aL, 44 Illinois, 155. 

^The Politics, translated by J. E. C. Welldon, Book 3, Cbap. 16, p. 154. 
58 "Reflections on the Revolution in France," Selected Works, edited by E. J. 
Payne, II, 69. 


Curzon declared that a country was on the road to disaster 
whenever it allowed a military administration to get the 
upper hand. 57 

William Pitt made one o the greatest speeches of his 
career in defense of the cause of John Wilkes, an English 
scoundrel, because through this case he was contending for 
the security of all Englishmen. 58 His ideas presented on 
that occasion accurately express the theory held by Taney. 
He asserted that every exertion of power beyond the bounds 
prescribed by the constitution, even though the House of 
Commons be the perpetrator, was arbitrary, illegal, and 
threatened destruction to the nation. To him the first prin- 
ciple of the constitution was that the subject should not be 
governed by the arbitrary will of any one man or body of 
men, but by laws. An English subject was possessed of cer- 
tain rights which the laws had given him, and which the laws 
alone could take from him. 

Taney's high regard for individual liberty as established 
by law may have been influenced by the developments of the 
period in which he lived. Early in his political career he 
aligned himself with Jacksonian democracy, and in the strug- 
gle over the Bank charter he gave evidence of his sympathy 
for the rights of common men and his belief that their liberty 
should be preserved. The years that followed the triumph 
of Jacksonian democracy were years of vast importance for 
the common people. One of the outstanding characteristics 
of the period between 1830 and 1860 was the increasing 
recognition and protection of individual rights by law. Mar- 
ried women, infants, debtors, bankrupts, and criminals had 
previously had few rights guaranteed by law. In this period 
more humane and reasonable legislation vastly improved 

57 The New York Times, May n, 1918. 

58 Speech on the case of John Wilkes, January 9, 1770, in C. A. Goodrich, 
Select British Eloquence, pp. 110-13. 


their status. Laborers were allowed to organize in unions. 59 
It was a period when people were thinking in terms of human 
rights, not in the theoretical fashion of the natural rights 
school of the previous century, but in practical and critical 
comparison of the legal status of human beings as it was and 
as justice demanded that it should be. Taney's thought was 
very much in harmony with the democratic and humane 
tendencies of this age. 

Undoubtedly the nature of Taney's education and his 
legal experience were also partly responsible for his reverence 
for the law. In college he had felt the influence of Dr. Nis- 
bet who, while he had little faith in American democracy, 
was a Scotch Whig with an inherent respect for the great 
British institutions. Dr. Nisbet's influence was probably 
something like Burke's would have been. After getting a 
good college education and reading widely Taney prepared 
himself for the practice of law, not as John Marshall had 
done, by attending lectures for six -weeks, 60 but by three years 
of hard study. Following his admission to the bar he de- 
veloped a large and important law practice, and came to be 
regarded as a thorough student of the law. With such a 
background it was natural that he should develop a respect 
for the principles of the law and a high regard for its place 
in human affairs. It was not strange either that his viewpoint 
was largely English. 

Taney's Decision was Ignored by the Executive 

Taney's defense of the right of the citizen to a rule of law 
in the case of John Merryman was like the voice of one cry- 
ing in the wilderness. It had no immediate effect on the 
methods employed by the President and the army. President 
Lincoln, without congressional authorization, continued to 

59 Charles Warren, A History of the American Bar, p. 446. 

60 A. J. Beveridge, The Life of Jo An Marshall, I, 154. 


suspend the right to the writ of habeas corpus in particular 
instances and in particular localities, leaving a wide amount 
of discretion to the army officials. 61 Finally in September, 
1862, he issued a proclamation that all persons discouraging 
enlistments or guilty of other disloyal practices should be 
subject to martial law and to trial and punishment by courts- 
martial or military commission. The privilege of the writ of 
habeas corpus was suspended in the case of all persons ar- 
rested during the war and imprisoned by military authori- 
ties. 62 Without the sanction of law the federal government 
arrested men by the thousands and confined them in military 
prisons. The number of such executive arrests was certainly 
over 13,000, and it has been estimated to have been as high 
as 38 ? 000. 63 This policy was bitterly criticized in some quar- 
ters, but it is generally assumed that the people as a whole 
supported it. 64 

President Lincoln, during the Civil War accepted the 
Machiavellian doctrine that the end justifies the means. The 
end was national unity and it was to be obtained by force. 
During the same period national unification was achieved in 
Italy and Germany by similarly aggressive methods. Pro- 

61 Richardson, of. cit n vol. VI; June 20, 1861, authorizing the suspension of 
the writ in the case of a particular man suspected of "treasonable practices," p. 19. 
July 2, 1861, authorizing the suspension of the writ between New York and Wash- 
ington, p. 19. October 14, 1861, authorizing further suspension of the writ, p. 39. 
December 2, 1861, authorizing Major General Halleck to suspend the writ in 
Missouri, p. 99. See also orders signed by the Secretary of War; February 14, 
1862, pp. 102-4; February 25, 1862, pp. 108-9; February 27, 1862, p. 109; April 
5, 1862, p. 112. The order of February 25, 1862 dealt with censorship of the 

** Ibid., pp. 98-99 (September 24, 1862). Charles Warren has called attention 
to the fact that this proclamation was issued just two days after Lincoln had issued 
his Emancipation proclamation, "Lincoln's Despotism," The New York Times, 
May 12, 1918. Finally on March 3, 1863 Congress passed an act authorizing the 
suspension of the privilege of the writ of habeas corpus. 

63 J. P. Hall, "Free Speech in War Time," Columbia Law Review > XXI (1921), 

64 Charles Warren, "Lincoln's Despotism," The New York Times, May 12, 


fessor Dunning has said, "Louis Napoleon, Otto Von Bis- 
marck, Camilio di Cavour and Abraham Lincoln were hard- 
headed politicians, whose methods subordinated the ideal and 
sentimental to the practical." 65 4 In America, for the time 
being at least, Taney was in the minority. He was standing 
in the face of a nationalism bent on American unification re- 
gardless of the will of a fraction of the people, and it was to 
be achieved regardless of the Constitution. 

Theoretical justification for the policy pursued by Lin- 
coln may perhaps be found in the doctrine that anything is 
justifiable when the existence of the nation is at stake. But, 
Taney would have contended, the President is not the nation. 
He is only an elected officer with certain delegated and 
limited powers. The sovereign has spoken and its will is 
written into the Constitution. Whatever may be sound the- 
ory, Americans in time of peace have been devoted to the 
forms of constitutional liberty. But in time of war many of 
them have accepted the doctrine that the sovereign is not 
bound by the law, and that somehow or other the officers of 
the government exercise the sovereignty. 

Public Opinion on the Decision 

Taney delivered his opinion in the Merryman case at a time 
when the streets of Baltimore were full of armed soldiers and 
the cannons of Fort McHenry were pointed upon the city. 
As he left the house of his son-in-law on his way to court he 
remarked that it was likely that he would be imprisoned in 
the fort before night, but he was going to do his duty. 66 It 
was a dramatic occasion when the eighty-four year old Chief 
Justice in a calm low voice read to an audience tense with 
suppressed emotion his defense of individual rights as guaran- 

*W. A. Dunning, A History of Political Theories from- Rousseau to Spencer, 
p. 298. By permission of The Macmlllan Company, publishers. 
66 Tyler, op. cit.> p. 427. 


teed by law. For his opinion he faced the condemnation of 
a people gripped by the patriotic intolerance of war and, it 
seemed at the time, military arrest. A few weeks later in the 
United States Senate, Senator Polk of Missouri referring to 
Taney's action said: 

I honor him for the brave and courageous discharge of his duty 
under the circumstances in which he was placed. He was in the 
midst of civil tumult; he was surrounded by soldiers, and by arms. 
While I honor him for his profound learning, and his great knowl- 
edge; while I honor him for his sage wisdom and his long expe- 
rience; I honor him also, and above all, for the simple and sublime 
courage that he manifested in applying the plain principles of the 
Constitution, under the circumstances in which he was placed. 
He is a worthy head of the conservative branch of the Govern- 
ment. 67 

The Daily Exchange of Baltimore, speaking editorially 
said of Taney's opinion, "Whatever be the result of the con- 
flict which produced it, the incident itself will be recorded 
forever, as one of those glorious protests of the right against 
the wrong, which dignifiy the disasters of a people and sow 
the ineradicable seeds of their ultimate redemption." 68 

Public opinion in the North was, in general, bitterly 
hostile toward Taney for his action. The New York Times 
while admitting that executive suspension of the writ of 
habeas corpus was illegal, said that respect for the courts was 
weakened by a fruitless conflict with the military forces when 
they were in control. The editorial went on to accuse Taney 
of being anxious to free a traitor. 69 He was himself "steeped 
to the crown in treason." "Too feeble to wield the sword 
against the Constitution, too old and palsied and weak to 

67 The Congressional Globe, 37th Cong., ist sess., July 10, 1861, p. 48. 

68 May 28, 1 86 1. Two of the editors of the Daily Exchange were arrested in 
September, and the paper was suppressed, J. T. Scharf, The Chronicles of Balti- 
more, pp. 616-17. 

130 May 29, 1861. 


march in the ranks of rebellion and fight against the Union, 
he used the power of his office to serve the cause of the trai- 
tors. . . ." 70 The World was milder in its condemnation, 
but its editors said that the tone which Taney assumed toward 
the President was "at least uncalled for and in bad taste." 71 
Even though Taney had been able to foresee that his de- 
cision would be ignored by the President and condemned by 
prevailing public sentiment there can be little doubt that his 
decision would have been the same. He was writing into the 
record his interpretation of principles vital to the liberties of 
the citizen. As a member of the Supreme Court provided 
for by the Constitution he had sworn to uphold the Constitu- 
tion. He had a duty to perform and nothing could swerve 
him from its performance. 



In 1819 before a slave-owning jury Taney defended a Meth- 
odist Abolitionist's right to free speech. Forty-two years 
later, in the shadow of Fort McHenry's guns, he defended 
John Merryman's right to be tried according to the methods 
prescribed by law. He had travelled a long road in the 
meantime, but neither his principles nor his alacrity in their 
defense, had suffered any change. At the close of a long 
career he could voice in fearless and fervent language his be- 
lief in the right of the individual to live by a rule of law. It 
had been one of the fundamental principles of his political 
faith from the beginning to the end. 

70 May 30, 1861. n May 29, 1861. 



The Supremacy of the State 

The state which Taney envisages is a powerful state. In it 
there is no question about "the superiority of public force to 
private forces." 1 As he sees it, the private forces which 
threaten most the superiority of the public force in the mod- 
ern state are those which represent the attempts of economic 
groups to infringe upon the welfare of the whole people. 
His convictions in this regard, most forcefully expressed in 
the Bank struggle, were consistently applied in his judicial 
decisions, especially in those affecting corporations. In such 
cases he was constantly on the alert to maintain the supremacy 
of the state. 

Taney's decisions show a marked tendency to place the 
public welfare ahead of private interests. As we noticed in 
the discussion of the police power he allows the state almost 
unlimited power to legislate for the general welfare. 
Whether the matter in question be liquor laws passed with a 
view to the regulation or prohibition of a business believed 
injurious to health or morals, or a law designed to prevent 
the increase of poverty and pauperism Taney sustains the 
legislature when there is not a clear constitutional prohibition 
against such legislation. His realistic conception of the prob- 
lems that faced the legislative officers of the state is illustrated 
in his dissenting opinion in the Passenger Cases where, speak- 
ing of immigrants, he said: 

1 "Tlie superiority of public force to private forces is the germ of the principal 
attribute of the State the attribute of sovereignty. . . ." The Collected Papers 
of Paul Vinogradoff, edited by H. A. L. Fisher, II, 351. 

r 2021 


Now in the great commercial emporium of New York, hun- 
dreds are almost daily arriving from different parts of the world, 
and that multitude of strangers, among whom are always many 
of the indigent and infirm, inevitably produces a mass of pauper- 
ism, which if not otherwise provided for, must press heavily on 
the industry of its citizens; and which, moreover, constantly sub- 
jects them to the danger of infectious diseases. It is to guard 
against these dangers that the law in question was passed. 2 

Taney's high view of the power of the state led him to 
assume that the representatives of the sovereign could be 
given power to attack such evils along whatever lines might 
seem best to them. As a member of the Supreme Court of 
the United States he assumed that the State legislatures had 
such power except where specifically limited by the Constitu- 

In his conception of the nature of the state and the location 
of sovereignty, and in his view of the predominance of the 
social welfare over private interests, Taney shows a striking 
similarity to Rousseau. In the thought of Rousseau the state 
is a corporate body formed by the mutual agreement of the 
members. Each member has a two-fold capacity he is both 
sovereign and subject. 3 The state has "absolute power over 
all its members." 4 Thus far Rousseau's conception of the 
state is essentially the one which Taney accepted. 

The Legal Nature of the State 

Taney, however, differs from Rousseau at an important point 
in his theory. He speaks as a jurist and emphasizes the judi- 
cial nature of the political association more than Rousseau 
did. While Taney was a liberal judge and not as tightly 
bound by ancient rules of law as are more conservative 
judges, his profound respect for the law and for legal 

2 7 Howard, 485 (1848). 8 The Social Contract^ Book I, Chap. 7. 

4 Ibid., Book 2, Chap. 4, p. 27. 


methods influenced most of his expressions of theory. He 
seemed to have had something of Aristotle's feeling that 
"law is intelligence without passion" and much to be pre- 
ferred to the rule of men. 5 

To Rousseau the sovereign is beyond law. "The Sov- 
ereign, merely by virtue of what it is, is always what it should 
be." 6 It cannot be bound constitutionally or in any other 
way. It is against the nature of the body politic "for the 
Sovereign to impose on itself a law which it cannot infringe." 7 
That he meant for this to include constitutions as well as 
other expressions of state policy is evidenced by the further 
statement that "there neither is nor can be any kind of funda- 
mental law binding on the body of the people not even the 
social contract itself." 8 

Taney's state is a legal state. It is formed by a compact 
which is the supreme law of the land. It is a subject of 
duties as well as rights. These are not duties imposed on it 
in the same sense in which legal duties are imposed on indi- 
viduals. 9 They are of two sorts, constitutional and moral. 
The constitutional limitations are self-imposed, but they chart 
a course which is the only one that the state can be assumed 
to follow. Taney recognizes no expression of the public, 
save that of a constitutional nature, as an expression of the 
sovereign will. 10 Besides the constitutional limitations there 
are moral obligations which apply to the state as well as to 
individuals. 11 However, if the state ignores moral obliga- 

5 The Politics of Aristotle, Book 3, Chap. 16, p. 154. 
The Social Contract) Book I, Chap. 7, p. 17. 

7 Ibid. 8 Ibid. 

6 "If such be the construction of this law ... it is the first instance in the 
history of nations in which a sovereignty has imposed a penalty upon itself, in 
order to compel it to be honest in its dealing's with individuals. A sovereignty is 
always presumed to act upon principles of justice, and if, from mistake or over- 
sight, it does injury to a nation or an individual, it is always supposed to be ready 
and willing to repair it." Bank of the United, States v. The United States, z 
Howard, 759-60 (1844). 

10 Perhaps best illustrated in Ex -parte Merryman, Campbell's Reports, 254 
(1861), and Ableman v. Booth, 21 Howard, 520 (1858). 


tlons and acts unjustly there is no authority,, other than the 
sovereign itself, which can force a change of policy. The sov- 
ereign is a free moral agent. It may choose between good 
and evil, but if it chooses the evil it will suffer. 12 

Although Taney held this view of the power of the sov- 
ereign he was quick to condemn the acts of governmental 
agents when they ignored the moral obligations of the sov- 
ereign and its agents, unless they were constitutionally au- 
thorized. This was illustrated by a Civil War decision which 
he handed down in a case involving the tactics of a govern- 
ment detective who had taken steps which practically 
amounted to the instigation of a crime for which he arrested 
the offender. Summarizing Taney's opinion in the case the 
reporter said: 

The parties he considered as having been seduced and betrayed 
into the purchase of the goods by the Provost-Marshal's officers, 
and could see no possible benefit to accrue to the Government 
from such a seizure that would in any way compare with the great 
evil that would arise from a court of justice countenancing such 
conduct by a condemnation of the goods. It would encourage 
officers to betray the weak and imprudent into all sorts of violation 
of law and would be demoralizing in the extreme to the officers 
themselves; and he was at a loss to see how any court of justice 
could condemn property under the circumstances of this seizure, 
unless the means employed be also countenanced. 13 

11 In 1832 when he was Attorney General Taney, at the request of the Presi- 
dent, rendered an opinion in regard to the compensation to be allowed to the 
widow of a consul who had died in the service. In the course of the opinion he 
said, "This, I think, is not only an equitable construction of the law, but one 
which ... is called for by the principles of justice j and it would be a severe and 
harsh construction of it to deny ... to his widow and family, those means of 
coming again to their home which would have been offered to them by the public 
if he had lived." Official Opinions of the Attorneys General , II (1825-1835), 522. 
See also Ohio Life Insurance and Trust Co. v. Debolt, 16 Howard, 428-29 (1853). 

^Ohio Lije Insurance and Trust Co. v. Debolt, 16 Howard, 428-29 (1853). 
Quoted in chap. 3, p. 205. 

13 Tyler, op. cit., p. 441. This case is not reported m Campbell's Reports, since 
these Reports include only his decisions to 1861. Apparently it is not to be found 
in the Federal Cases either. 


In a similar case in 1928 Mr. Justice Brandeis said in a 
dissenting opinion, "This prosecution should be stopped, not 
because some right of Casey's has been denied, but in order 
to protect the Government. To protect it from illegal con- 
duct of its officers. To preserve the purity of its courts. 5 ' 14 
Mr. Justice Brandeis and Chief Justice Taney were thinking, 
in these opinions, of the social consequences of such conduct 
by government officers. There was something about it that 
was morally reprehensible. It was incompatible with the 
dignity of government in a democracy and incompatible with 
government by law. 

The Supreme Law 

Taney's belief in the inviolability of the Constitution and the 
supremacy of constitutional laws has been treated in some 
detail in the course of this discussion of his theory. Because 
of his tendency to place social welfare above individual in- 
terests he upheld the legislatures in most of their measures 
dealing with the general welfare. However when he thought 
Congress had interfered with a Constitution-guaranteed right 
of individuals by depriving them of property without due 
process of law, he wrote his powerful Dred Scott opinion up- 
holding the Constitution at the expense of the statute. 15 His 
belief in the supremacy of the Constitution and its "great 
and fundamental laws, which congress itself could not sus- 
pend" 16 led him in the Merryman case to write a ringing 
condemnation of the tactics of military officers acting under 
the President's orders. There was no risk which he would 
not take personally in order to maintain the supremacy of 
the Constitution and the reign of law. It was his conviction 
that free government could not exist without "a ready 

14 Casey v. United States, 276 U. S. 4.25. 

15 19 Howard, 393 (1856). 

18 Ex $arte Merryman, Campbell's Reports, 269 (1861), 


obedience to the laws as administered by the constituted 
authorities." 17 

Taney's view is essentially like that of one of his con- 
temporaries who said, "The sovereignty of the law ... is 
the foundation stone of all society. . . . He who disobeys it 
is an enemy to his race and a traitor to himself; he who defies 
it, is a rebel against the power, which he himself has con- 
tributed to call into existence and to make supreme. 5718 

The Importance of the Court 

Because of his acceptance of the Constitution as the ultimate 
expression of the sovereign will and his belief in the su- 
premacy of the law, Taney exalted the position of the 
Supreme Court as the final interpreter of the law. Martin 
Van Buren, critical of Taney's conception of the position of 
the Court, thought he saw in it the shadow of John Marshall. 
Explaining the background of Taney's views he said: 

He had occupied a distinguished place in the Federal ranks to an 
advanced period in his professional life; he had acquired an en- 
viable fame at the Bar, and had left it ... with feelings of ad- 
miration and respect not only for his professional brethren but for 
the Bench, ... It was hardly to be expected that he should, on 
taking his seat, have proved insensible to the esprit du corps which 
had long prevailed in and around that high tribunal, and which, 
directed by the plastic hand of John Marshall, had charmed minds 
as strong as his own, even although professing opposite political 
principles. . . . Although the master-mind which gave it life and 
by which it was installed has departed, the proceedings now the 
subject of our review give us abundant reason to apprehend that 
the spirit has retained its place and power. 19 

17 Ableman v. Booth, 21 Howard, 525 (1858). See also Kennett et al v. 
Chambers, 14 Howard, 50 (1852). 

18 Henry St. George Tucker, Lectures on Government, p. 14. 

19 Van Buren, op, cit., p. 363. "The subject of our review" was the Dred Scott 



This was the verdict of a friendly critic who had been 
associated with Taney in political leadership under Andrew 
Jackson. He never forgot Taney's Federalist background. 
And because of it he was just a little doubtful about the 
orthodoxy of his democracy. 20 When he found Taney as- 
suming that the Supreme Court should be the final authority 
in interpreting the law, Van Buren jumped to the conclusion 
that it must be the Federalist taint, and the lingering influ- 
ence of the tough old Federalist who had preceded Taney on 
the Bench. It is true that most of Taney's ideas on the posi- 
tion of the Court would have met with Marshall's approval. 
But there was nothing in them incompatible with the dem- 
ocratic faith. In Taney's theory they were part of the same 
pattern. The Court was the great defender of the settled 
will of the sovereign people as constitutionally expressed. 

As he saw it the Court was the chief agency for the main- 
tenance of the political system established by the Constitution. 
In connection with a discussion of the power conferred upon 
the Supreme Court he said: 

This judicial power was justly regarded as indispensable, not 
merely to maintain the supremacy of the laws of the United States, 
but also to guard the States from any encroachment upon their 
reserved rights by the general government. And as the constitu- 
tion is the fundamental and supreme law, if it appears that an act 
of congress is not pursuant to and within the limits of the power 
assigned to the federal government, it is the duty of the courts of 
the United States to declare it unconstitutional and void. 21 

He regarded the Supreme Court as peculiarly fitted for 
such a high duty because he thought of it, not as the creature 
of the government, but as the instrument of the sovereign 
people. Of it he said, "This tribunal, therefore, was erected, 
and the powers of which we have spoken conferred upon it, 
not by the federal government, but by the people of the 

**Ibid. 9 p. 365. ffl Ableman v. Booth, 21 Howard, 520 (1858). 


States, who formed and adopted that go\ r ernment, and con- 
ferred upon it all the powers, legislative, executive, and 
judicial which it now possesses." 22 

In its exercise of judicial power Taney expected the Court 
to be supreme, and he thought it entitled to the support of 
the executive. In the Merryman case he said: 

And the only power, therefore which the president possesses, 
where the "life, liberty, or property" of a private citizen are con- 
cerned, is the power and duty prescribed in the third section of 
the second article, which requires "that he shall take care that the 
laws shall be faithfully executed." He is not authorized to execute 
them himself, or through agents . . . but he is to take care that 
they be faithfully carried into execution, as they are expounded or 
adjudged by the co-ordinate branch of the government to which 
that duty is assigned by the constitution. It is thus made his duty 
to come in aid of the judicial authority, if it shall be resisted by a 
force too strong to be overcome without the assistance of the 
executive arm. But in exercising this power he acts in subordina- 
tion to judicial authority, assisting it to execute its process and 
enforce its judgments. 23 

Taney again had occasion to express his views of the inde- 
pendent position which the Court should occupy when, dur- 
ing the Civil War, Congress provided for a tax on incomes, 
including the salary of federal judges. In a letter of protest 
to the Secretary of the Treasury, after calling attention to 
the constitutional provision that salaries of federal judges 
shall not be reduced during their continuance in office, he said, 
"The Act in question, as you interpret it, diminishes the com- 
pensation of every Judge three per cent.; and if it can be 
diminished to that extent by the name of a tax, it may, in the 
same way, be reduced from time to time at the pleasure of 
the Legislature." 24 

** Ibid., 21. a Ex 'parts Merryman } CampbelPs Reports, 260. 

24 Tyler, op. cfa, p. 432. 


Then he pointed out the reasons why the maintenance of 
judicial independence was of vital importance, saying: 

The Judiciary is one of the three great departments of the 
Government created and established by the Constitution. Its 
duties and powers are specifically set forth, and are of a character 
that requires it to be perfectly independent of the other depart- 
ments. And in order to place it beyond the reach, and above even 
the suspicion, of any such influence, the power to reduce their 
compensation is expressly withheld from Congress and excepted 
from their powers of legislation. . . . For the articles which limit 
the powers of the Legislative and Executive branches of the Gov- 
ernment, and those which provide safeguards for the protection of 
the citizen in his person and property, would be of little value with- 
out a Judiciary to uphold and maintain them which was free from 
every influence, direct or indirect, that might by possibility, in 
times of political excitement, warp their judgments. 25 

This argument for the independence of the judiciary is 
an excellent statement of Taney's conception of the position 
which the courts should occupy. Agents of the sovereign 
people, they should be beyond political influence or popular 
excitement as they apply the sovereign will to controversies 
that come before them, whether in relation to powers of gov- 
ernment or individual rights. This feeling was part of his 
deeply rooted belief in the supremacy of the law. 


That Taney was a firm believer in individual rights is evi- 
denced by the Dred Scott opinion and by his wartime decisions 
involving individual liberty. 26 And yet, apparently there 
were no individual rights which he considered beyond the 
reach of the sovereign power constitutionally expressed. His 
25 ibid., pp. 432-33- 

38 Ex parte Merry man, Campbell's Reports, 524 (1861); United States v. Guil- 
lem } ii Howard, 47 (1850)5 Mitchell v. Harmony y 13 Howard, 115 (1851). 


defense of individual liberty was always of liberty established 
by law. He never based his defense on natural rights. 

How could a lover of liberty entrust such transcendent 
power to the state? The answer, in Taney's case, lies in the 
deep rooted democracy of his political faith. He had a firm 
belief in the ultimate wisdom of the people. He was willing 
to trust the state with power because it was his conviction that 
the will of the people as constitutionally expressed would 
not endanger the individual's welfare, but rather conserve it. 
In 1833, in connection with the Bank struggle, he wrote to 
Jackson urging a course of action that would put the issue 
squarely before the people, saying, "I rely at all times with 
confidence on the intelligence and virtue of the people of the 
United States, and believing it to be right to remove the 
Deposites, I think they will sustain the decision." 27 In 1836, 
several months after he had become Chief Justice he wrote 
to Jackson saying that he thought the great majority of the 
people of the United States "will never barter their liberties 
for money nor shrink before the frowns of the moneyed 
aristocracy." 28 

Even after his experience in the Merryman case when the 
Constitution had been ignored by the military forces of the 
government, apparently with the tacit approval of public 
opinion, Taney regarded the aberration as only temporary. 
In 1863 he wrote to a friend, "At my advanced age, I can 
hardly hope to see the end of the evil times on which we 
have fallen. But I trust you will live to see the civil power 
restored in Maryland to its supremacy over the military, and 
the homes and firesides of its citizens once more safe under 
the protection and guardianship of law." 29 

It was only after constitutional government had been sus- 
pended by military force that Taney's political expressions 

27 Correspondence of Andrew Jackson, V, 148. 

p. 431* ^ Tyler, op. cit., p. 458. 


were pessimistic, but even then he looked forward to the time 
when the supremacy of the law would again be established. 
When one has an abiding faith in democracy and the wisdom 
of the people, he is willing to trust the state with power. It 
is only illegal power that seems dangerous to the believer in 


In our time perhaps more than at any other period since he 
lived, Taney's thought has a particular interest in connection 
with everyday affairs. Democracy, the powerful state, human 
liberty these were the high points in his political philosophy. 
Are they irreconcilable? In a world that is full of dictator- 
ships it is easy to answer in the negative. Taney's own ex- 
perience in the Merryman case may seem at first glance to 
demonstrate the fallacy of his faith in the concomitant nature 
of liberty and authority in a democracy under a reign of law. 
In a crisis the Constitution and the law were easily brushed 
aside at the order of the chief executive elected by the people. 
Taney's answer to this indictment of his faith must have been 
that the lawless encroachment on individual rights was not 
the sovereign expressing itself, but government officials 
usurping power. And he might have said, as Thomas Jeffer- 
son did under similar circumstances, "A little patience and 
we shall see the reign of witches pass over . . . and the 
people recovering their true sight, restoring their government 
to its true principles." 30 

In time of peace the encroachment of government on the 
affairs of individuals is less spectacular. We have gone a 
long way from the laissez faire ideas which prevailed in the 
early days of the, industrial revolution. The trend toward 
social thinking was beginning to be noticeable in Taney's time. 

30 Jefferson to John Taylor, June i, 1798, The Writings of Thomas Jefferson y 
VII, 265. 


Already the legislatures were setting about the alleviation of 
some of the inhuman practices of the machine age, and the 
courts were allowing them increasing leeway. Chief Justice 
Taney was one of the pioneers in judicial liberalism toward 
legislation for the social welfare. Since his time there has 
been a powerful trend toward more state control in every 
phase of life. Sociologists, economists, and statesmen are 
emphasizing social rights and obligations. Socialism has 
made rapid headway in recent years, so that the socialized 
state, already in existence in a number of countries in the 
world, seems not such a remote possibility in the United 
States. Everywhere governments are assuming more re- 
sponsibility for the character of their peoples, and more 
power over their lives. 

A modern school of political scientists, in reaction against 
the tendency to make the state omnipotent, have attacked the 
theory of state sovereignty, a theory once as unquestioned in 
political science as Newtonian principles in physics or the Ten 
Commandments in the Christian faith. Professor Laski 
argues that "it would be of lasting benefit to political science 
if the whole concept of sovereignty were surrendered." 31 If 
there is something dangerous to human personality in the 
powerful state there can be little doubt as to the correctness 
of his view. There is a possibility, however, that the dangers 
to individual liberty which Laski and the other pluralists fear 
are dangers which result from tyranny of government and 
not necessarily from tyranny of the state. Taney would 
doubtless say that the answer lay in more democratic control 
of the state through the medium of constitutional expression. 
More democracy, not necessarily less state authority. 

But it may be that actual democracy is impossible in the 
giant modern state. Walter Lippmann has aptly suggested 
that the ordinary citizen knows from experience that he is 

lat the ordinary citizen knows rr< 

81 Laski, A Grammar of Politics, pp. 44-45. 


not really a sovereign. 32 Lippmann and John Dewey have, 
perhaps most forcefully among American writers, called at- 
tention to the difficulty of popular government in a nation of 
over a hundred million people, but both have come back with 
the hope that a technique can be developed which will make 
popular sovereignty fact as well as fiction. 33 If the technique 
cannot be developed, it is possible that the democratic faith 
of Taney and the other Jacksonians will have to go the way 
of the flatboats and the stagecoaches which they helped to 
usher out. 

It is difficult to measure Taney's influence on either his 
age or our own. It is perhaps most discernible in the trend 
toward state protection of the social welfare. Taney's influ- 
ence on the Supreme Court was in a number of important 
respects a liberalizing one. His Jacksonian democracy went 
too deep for it to have been otherwise. Only when the clash 
between capitalism and the planting system came to a climax 
which threatened to destroy the Union did he find himself 
on the conservative side. His chief contribution to constitu- 
tional law was in the field of the liberalization of the police 
power, a result of his belief in the paramount nature of the 
general welfare and the sovereignty of the state. 

82 The Phantom Public, p. 14. 

83 John Dewey, The Public and Its Problems-, Walter Lippmann, The Phantofa 
Public, Public Opinion. 



I. A complete list of Taney's Supreme Court opinions is given 

dbleman v. Booth and United States v. Booth, 21 Howard, 506 


Agricultural Bank of Mississippi et al. v. Rice et aL, 4 Howard, 

225 (1845) 

Aldridge et al. v. Williams, 3 Howard, I (1844) 
Alexandrian Canal Co. v. Swann, 5 Howard, 83 (1846) 
Almy v. State of California, 24 Howard, 169 (1860) 
Andrews v. Pond, 13 Peters, 65 (1839) 
Bacon et aL v. Hart, I Black, 38 (1861) 
Baldwin v. Ely, 9 Howard, 580 (1849) 
Ballance v. Forsyth et aL, 21 Howard, 389 (1858) 
Bank of Alexandria v. Dyer, 14 Peters, 141 (1840) 
iBank of Augusta v. Earle, 13 Peters, 519 (1839) 
Bank of Tennessee etc. v. Horn, 17 Howard, 157 (1854) 
Bank of the Metropolis v. New England Bank, I Howard, 234 


Bank of the Metropolis v. New England Bank, 6 Howard, 212 


Bank of the United States v. The United States, 2 Howard, Ap- 
pendix (1844). Taney did not sit in the Court when this 
case was heard, but he wanted his opinion made public, and 
so asked that it be published in the appendix. 

Bank of Washington et al. v. State of Arkansas et al., 20 Howard, 
530 (1857) 

Barribeau et al v. Brant, 17 Howard, 43 (1854) 

Barrow v. Hill, 13 Howard, 54 (1851) 

Barry v. Mercein et aL, 4 Howard, 574 (1845) 

Barry v. Mercein et aL y 5 Howard, 103 (1846) 



Barton v. Forsyth, 20 Howard, 532 (1857) 

Beers v. State of Arkansas, 20 Howard, 527 (1857) 

Bern ei al v. Heath, 12 Howard, 1 68 (1851) 

Bennett v. Butterworth, 8 Howard, 124 (1849) 

Bennett v. Butterworth, II Howard, 669 (1850) 

Bentonv. Woolsey, 12 Peters, 27 (1838) 

Bloomer v. McQuewan et aL, 14 Howard, 539 (1852) 

Bondv. Brown, 12 Howard, 254 (1851) 

Bosley et aL v. Bosley's Executrix, 14 Howard, 390 (1852) 

Bradstreet v. Thomas, 12 Peters, 59 (1838) 

Brewer v. Blougher, 14 Peters, 178 (1840) 

Brewsterv. Wakefield, 22 Howard, 118 (1859) 

Brig James Gray v. Shif John Fraser et al. } 21 Howard, 184 


-Bronson v. Kmzie et aL, I Howard, 311 (1843) 

Brooks v. Norris, II Howard, 204 (1850) 

Brown v. Duchesne, 19 Howard, 183 (1856) 

Brown v. Shannon et aL, 20 Howard, 55 (1857) 

Brown et aL v. Asfden et aL, 14 Howard 25 (1852) 

Bruce et aL v. The United States, 17 Howard, 437 (1854) 

Burgess v. Gray et aL, 1 6 Howard, 48 (1853) 

Burke v. Games et aL, 19 Howard, 388 (1856) 

Callan v. May, 2 Black, 541 (1862) 

Campbell et aL v. Boyreau, 21 Howard, 223 (1858) 

Carrol et aL v. Dorsey et aL, 20 Howard, 204 (1857) 

Carter v. Bennett, 15 Howard, 354 (1853) 

Carver v. Hyde, 1 6 Peters, 513 (1842) 
Charles River Bridge v. Warren Bridge, II Peters, 420 (1837) 

Commonwealth Bank of Kentucky v. Griffith, 14 Peters, 56 


Congdon et aL v. Goodman et aL, 2 Black, 574 (1862) 

Cook v. Moffat et aL, 5 Howard, 295 (1846) Separate opinion. 

Coons v. Gallaher, 15 Peters, 18 (1841) 

C r aw j ord v. Points, 13 Howard, II (1851) 

Curtis v. Martin et aL, 3 Howard, 105 (1844) 

Cutler v. Rae, 7 Howard, 729 (1848) 


Decatur v. Paulding, 14 Peters, 497 (1840) 

DeKrafftv. Barney, 2 Black, 704 (1862) 

Den v. Jersey Company, 15 Howard, 426 (1853) 

De Valengin v. Duffy, 14 Peters, 282 (1840) 

Dinsmanv. Wilkes, 12 Howard, 389 (1851) 

Doe v. Beebe et al., 13 Howard, 25 (1851) 

Doe et al. v. Braden, 16 Howard, 635 (1853) 

Dred Scott v. Sandjord, 19 Howard, 393 (1856) 

Ex^arte Crenshaw, 15 Peters, 119 (1841) 

Exfarte Gordon, I Black, 503 (1861) 

Ex forte Hennen, 13 Peters, 225 (1839) 

Ex forte Many, 14 Howard, 24 (1852) 

Ex forte Secombe, 19 Howard, 9 (1856) 

Ex farte Story, 12 Peters, 339 (1838) 

Ex farte Taylor, 14 Howard, 3 (1852) 

Forney v. Towle, i Black, 350 (i 86 1 ) 

Fleming et al. v. Page, 9 Howard, 603 (1849) 

Florida v. Georgia, IJ Howard, 478 (1854) 

Fontain v. Ravenal, 17 Howard, 369 (1854) Concurring opinion. 

Forgay et al. v. Conrad, 6 Howard, 201 (1847) 

4,885 Bags of UnseedWills, Claimant; Sears Libellant, I 
Black, 1 08 (1861) 

Fourniquet et al. v. Perkins, 1 6 Howard, 82 (1853) 

Fremont v. The United States, IJ Howard, 542 (1854) 

Prevail v. Bache, 14 Peters, 95 (1840) 
Fulton v. McAfee, 16 Peters, 149 (1842) 
Garcia v. Lee, 12 Peters, 511 (1838) 
Garonne, The, II Peters, 73 (1837) 
Gayler et al. v. Wilder, 10 Howard, 477 (1850) 
Gayler et al. v. Wilder, 10 Howard, 509 (1850) 

'Genesee Chief et al. v. Fitzhugh et al, 12 Howard, 443 (1851) 
Gibson v. Stevens, 8 Howard, 384 (1849) 
Gill v. Oliver's Executors et al, II Howard, 529 (1850) 
Goodtitle v. Kibbe, 9 Howard, 471 (1849) 
Gordon v. United States, 117 U. S. 697. Opinion prepared by 
Chief Justice Taney in 1864. He died before the December 


term, in which it was to be made the basis of a decision of the 
Court, and his opinion was not published until 1886. 
Grand Gulf Railroad and Banking Co. et aL v* Marshall, 12 

Howard, 165 (1851) 
Greely's Administrator v. Burgess et aL, 1 8 Howard, 413 (1855) 

Dissenting opinion. 

Groves v. Slaughter, 15 Peters, 449 (1840). Concurring opin- 

*&runer v. The United States, II Howard, 163 (1850) 
Gue v. Tide Water Canal Co., 24 Howard, 257 (1860) 
Gwin et aL v. Barton et aL, 6 Howard, 7 (1847) 
Gwinn v. Buchanan, Hagan f? Co., 4 Howard, I (1845) 
Haney et aL v. Baltimore Steam Packet Co., 23 Howard, 287 

(1859). Dissenting opinion. 

Hardeman et aL v. Harris, J Howard, 726 (1848) 
Hecker v. Fowler, I Black, 95 (1861) 

Heirs of De Armas v. United States, 6 Howard, IO2 (1847) 
Hemmenway v. Fisher, 20 Howard, 255 (1857) 
Henderson et aL v. Tennessee, 10 Howard, 311 (1850) 
Herman v. Phalen, 14 Howard, 79 (1852) 
Hildeburnv. Turner, 5 Howard, 69 (1846) 
Hodge et aL v. Williams, 22 Howard, 87 (1859) 
Hogan et aL v. Ross, II Howard, 294 (1850) 
Holmes v. Jennison, 14 Peters, 540 (1840) 
Hortsman v. Hens haw et aL, II Howard, 177 (1850) 
Hoytv. Shelden, I Black, 518 (1861) 
Hudgins et aL v. Kem<p, 1 8 Howard, 530 (1855) 
Hunt v. Palao et aL, 4 Howard, 589 (1845) 
In re Kaine y 14 Howard, 103 (1852). Taney concurred in dis- 
sent with Mr. Justice Nelson. 
Insurance Co. of the Valley of Virginia v. Mordecai, 21 Howard, 

i 95 (1858) 

Jackson v. Hale et aL, 14 Howard, 525 (1852) 
Jecker et aL v. Montgomery, 13 Howard, 498 (1851) 
Jewell* s Lessee et al. v. Jewell et aL, I Howard, 219 (1843) 
Kanouse v. Martin, 14 Howard, 23 (1852) 


Keene v. Whitaker, 14 Peters, 170 (1840) 

Kelsey v. Hobby, 1 6 Peters, 269 (1842) 

Kelsey et aL v. Forsyth, 21 Howard, 85 (1858) 

Kendall v. Stokes et aL, 3 Howard, 87 (1844) 

Kendall v. United States, 12 Peters, 524 (1838). Dissenting 

Kennett et aL v. Chambers, 14 Howard, 38 (1852) 

-Kentucky v. Dennison, 24 Howard, 66 (1860) 

Lambert et aL v. Ghiselin, 9 Howard, 552 (1849) 

Larmanv. Ti$dale*s Heirs, II Howard, 586 (1850) 

Lattimer v. Poteet, 14 Peters, 4 (1840). Dissenting opinion. 

Lawrence v. Caswell et aL, 13 Howard, 488 (1851) 

Lea, Rabetaille and Langdon v. Kelly, 15 Peters, 213 (1841) 

Lessee of Smith et aL v. McCann, 24 Howard, 398 (1860) 

Lewis v. Lewis, 7 Howard, 776 (1848) 
^License Cases, 5 Howard, 554 (1846) 

Linton et aL v. Stanton, 12 Howard, 423 (1851) 

Lordv. Veazie, 8 Howard, 251 (1849) 
zLuther v. Borden et aL, J Howard, I (1848) 

McBride v. Hoey, II Peters, 1 66 (1837) 

McKnightv. Taylor, I Howard, 161 (1843) 

McNeil v. Holbrook, 12 Peters, 84 (1838) 

Magerv. Grima et aL, 8 Howard, 490 (1849) 

Maney et aL v. Porter, 4 Howard, 55 (1845) 

Martin v. Waddell, 1 6 Peters, 367 (1842) 

Maryland v. Baltimore and Ohio R. Co., 3 Howard, 534 (1844) 

Mason v. Gamble et aL, 21 Howard, 390 (1858) 

Matheson et aL v. The Branch Bank of Mobile, 7 Howard, 260 

Maxwell v. Kennedy et aL, 8 Howard, 210 (1849) 

Mayberry v. Thompson, 5 Howard, 121 (1846) 

Mills v. Brown, 16 Peters, 525 (1842) 

Miners* Bank v. The United States, 5 Howard, 213 (1846) 

Mitchell v. Harmony, 13 Howard, 115 (1851) 

Mitchell v. Lenox, 14 Peters, 49 (1840) 

Montault et aL v. The United States, 12 Howard, 47 (1851) 


Montgomery et al. v. Anderson et al., 21 Howard, 386 (1858) 

Moore v. Brown et al., II Howard, 414 (1850) 

Morgan v. Curtenius, et al., 19 Howard, 8 (1856) 

Morsellv. Hall,, 13 Howard, 212 (1851) 

Neil, Moore 6? Co. v. The State of Ohio, 3 Howard, 720 (1844) 

Neils on v. Lagow, 7 Howard, 772 (1848) 

Nelson v. Garland, I Howard, 265 (1843) 

Nesmlth et al. v. Sheldon et al., 6 Howard, 40 (1847) 

Nesmith et al. v. Sheldon et al., J Howard, 8 12 (1848) 

North Carolina, The, 15 Peters, 40 (1841) 

Norton's Assignee v. Boyd et al., 3 Howard, 426 (1844) 

O'Brien v. Smith, I Black, 99 (1861) 

Ohio and Mississi-pfi R. Co. v. Wheeler, I Black, 286 (1861) 

Ohio Life Insurance and Trust Co. v. Debolt y 1 6 Howard, 416 


O'Reilly et al v. Morse et al., 15 Howard, 62 (1853) 

Parish v. Ellis, 1 6 Peters, 451 (1842) 

Parks v. Turner et al., 12 Howard, 39 (1851) 

Passenger Cases, J Howard, 283 (1848). Dissenting opinion. 

Payne et al. v. Niles et al., 20 Howard, 219 (1857) 

Peede v. Phifp et al., 14 Howard, 368 (1852) 

Peck et al. v. Sanderson, 17 Howard, 178 (1854). Dissenting 

Pennsylvania v. The Wheeling etc. Bridge Co. et al., 13 Howard, 

518 (1851) 

Peffer et aL v. Dunlaf et al., 5 Howard, 51 (1846) 
Perkins v. Fourniquet et al., 6 Howard, 206 (1847) 
Perkins v. Fourniquet et ux., 14 Howard, 328 (1852) 
Pemne v. Chesapeake and Delaware Canal Co., 9 Howard, 172 


Phelp v. Mayer, 15 Howard, 160 (1853) 

Philadelphia etc. R. Co. v. Maryland, 10 Howard, 376 (1850) 
Platenius v. State of Arkansas, 20 Howard, 527 (1857) 
Porter et al. v. Foley, 21 Howard, 393 (1858) 
Postmaster-General v. Trigg, 1 1 Peters, 172 (1837) 


Poydras de la Lande v. Treasurer of Louisana, 17 Howard, I 


Prevostv. Greneaux, 19 Howard, I (1856) 
Prigg v. Pennsylvania, 1 6 Peters, 539 (1842). Dissenting opin- 

Prouty v. Draper, 1 6 Peters, 336 (1842) 
Reddall v. Bryan et al., 24 Howard, 420 (1860) 
Reedv. Marsh, 13 Peters, 153 (1839) 
Remington v. Llnthlcum, 14 Peters, 84 (1840) 
Rhode Island v. Massachusetts, 12 Peters, 627 (1838)* Dissent- 
ing opinion. 

Rhode Island v. Massachusetts, 13 Peters, 23 (1839) 
Rhode Island v. Massachusetts, 14 Peters, 2IO (1840) 
Rhode Island v. Massachusetts, 15 Peters, 233 (1841) 
Rhode Island ^Massachusetts, 4 Howard, 591 (1845). Separate 


Rhodes v. The Steamship Galveston, IO Howard, 144 (1850) 
Rice v. Minnesota and Northwestern R. Co., 21 Howard, 82 


Richmond v. City of Mllwaukle, 21 Howard, 80 (1858) 
Richmond v. City of Milwaukie, 21 Howard, 391 (1858) 
Ross v. Prentlss, 3 Howard, 771 (1845) 
Rowan et al. v. Runnels, 5 Howard, 134 (1846) 
Russell v. Southard et al., 12 Howard, 139 (1851) 
Sadler et al. v. Hoover et al, J Howard, 646 (1848) 
Saltmarsh v. Tuthlll, 12 Howard, 387 (1851) 
Samfson et al. v. Walsh et al., 24 Howard, 207 (1860) 
Sarchet v. United States, 12 Peters, 143 (1838) 
Savage's Assignee v. Best, 3 Howard, ill (1844) 
Searight v. Stokes et al., 3 Howard, 151 (1844) 
Sears v. Eastburn, 10 Howard, 187 (1850) 
Selden v. Myers et al., 20 Howard, 506 (1857) 
Shaffer v. Scudday, 19 Howard, 16 (1856) 
Sheffard et al. v. Wilson, 5 Howard, 2IO (1846) 
Shields v. Thomas, 17 Howard, 3 (1854) 
Sims v. Hundley, 6 Howard, I (1847) 


Sixer v. Many, 1 6 Howard, 98 (1853) 

Smith v. Clark et aL y 12 Howard, 21 (1851) 

Smith v. Ely et aL, 15 Howard, 137 (1853) 

Smith et al. v. Condry, I Howard, 28 (1843) 

Scalding v. State of New York, 4 Howard, 21 (1845) 

Stairs et al. v. Peaslee, 1 8 Howard, 521 (1855) 

State Bank of Ohio v. Knoof, 1 6 Howard, 369 (1853). Con " 

curring opinion. 

Steamer St. Lawrence , I Black, 522 (1861) 
Steamer Virginia v. West et aL, 19 Howard, 182 (1856) 
Stelle v. Carroll, 12 Peters, 201 (1838) 
Stimponv. W estchester R. Co., 3 Howard, 553 (1844) 
Strader et al. v. Graham, 10 Howard, 82 (1850) 
Swartwout v. Gihon et aL, 3 Howard, 1 10 (1844) 
Taylor et aL v. Carryl, 2O Howard, 583 (1857). Dissenting 


Taylor et aL v. Savage, I Howard, 282 (1843) 
Thomas et aL v. O shorn, 19 Howard, 22 (1856). Dissenting 


Thompson v. Selden et aL, 20 Howard, 194 (1857) 
Tolandv. Sp-ague, 12 Peters, 300 (1838) 
Tombigbee Railroad Co. v. Kneeland, 4 Howard, 1 6 (1845) 
Townsend v. Jemison, 7 Howard, 706 (1848). Concurring 


Tracy v. Holcombe, 24 Howard, 426 (1860) 
Tremlett v. Adams, 13 Howard, 294 (1851) 
Trustees for Vincennes University v. Indiana, 14 Howard, 28 

(1852). Dissenting opinion. 
Udell et aL v. Davidson, 7 Howard, 769 (1848) 
United States v. Boisdore y s Heirs, 8 Howard, 113 (1849) 
United States v. Booth, 1 8 Howard, 476 (1855) 
United States v. Breitling, 20 Howard, 252 (1857) 
United States v. Briggs, 5 Howard, 208 (1846) 
United States v. Carr et aL, 8 Howard, I (1849) 
United States v. Castro et aL, 24 Howard, 346 (1860) 
United States v. Coxe, 17 Howard, 41 (1854) 


United States v. Curry et aL, 6 Howard, 106 (1847) 
United States v. Ferreira, 13 Howard, 40 (1851) 
United States v. Guillem, II Howard, 47 (1850) 
United States v. Hodge, 3 Howard, 534 (1844) 
United States v. King et aL, 3 Howard, 773 (1844) 
United States v. King et aL, J Howard, 833 (1848) 
United States v. Knight's Administrator, I Black, 488 (1861) 
United States v. Le Blanc et aL, 12 Howard, 435 (1851) 
United States v. McCullagh et aL, 13 Howard, 216 (1851) 
United States v. Morris, 14 Peters, 464 (1840) 
United States v. Pacheco, United States v. Hensley, United States 
v. Bidwell, and United States v. Sunot et aL, 20 Howard, 261 

United States v. Pillerin et aL, 1 3 Howard, 9 (1851) 

United States v. Porche, 12 Howard, 426 (1851) 

United States v. Reid et aL, 12 Howard, 361 (1851) 

United States v. Rogers, 4 Howard, 567 (1845) 

United States v. Roselius et aL, 15 Howard, 36 (1853) 

United States v. Seaman, IJ Howard, 225 (1854) 

United States v. Turner et aL, 1 1 Howard, 663 (1850) 

United States v. Wilkinson et aL, 12 Howard, 246 (1851) 

United States v. Yates et aL, 6 Howard, 606 (1847) 

Van Ness v. United States Bank, 13 Peters, 17 (1839) 

Van Ness v. Van Ness, 6 Howard, 62 (1847) 

Van Rensselaer v. Watt's Executors, J Howard, 784 (1848) 

Villabolos et aL v. United States, 6 Howard, 8 1 (1847) 

W abash and Erie Canal v. Beers, I Black, 54 (1861) 

Walworth v. Kneeland et aL, 15 Howard, 348 (1853) 

Wanzer v. Tupper et aL, 8 Howard, 234 (1849) 

Webster v. Cooper, 10 Howard, 54 (1850) 

West v. Brashear, 12 Peters, 1 01 (1838) 

West v. Brashear, 14 Peters, 51 (1840) 

Wiggins et aL v. Gray et aL, 24 Howard, 303 (1860) 

Williams v. Ash, I Howard, I (1843) 

Williams v. Gibbes et aL, IJ Howard, 239 (1854) 

Wilson v. Barnum, 8 Howard, 258 (1849) 


Wilson <v. Sandford et aL, 10 Howard, 99 (1850) 
Wilson and Co. v. Smith, 3 Howard, 763 (1844) 
Wilson's Heirs v. A 7 ", Y. Life and Fire Insurance Co., 12 Peters, 

140 (1838) 

Winston v. The United States, 3 Howard, 771 (1844) 
Wood v. Underhill et aL, 5 Howard, I (1846) 
Wylie v, Coxe, 14 Howard, I (1852) 

2. Circuit Court Opinions 

Taney 's circuit court opinions from 1836 to 1861 are pub- 
lished in Campbell, James M., Reports of Cases at Law and 
Equity and in the Admiralty determined for the District of Mary- 
land by Roger Brooke Taney, Philadelphia, 1871. 

The charge to the Grand Jury, Circuit Court of the United 
States, April Term 1836, Campbell's Reports, Appendix, p. 6 1 6, 
contains a good statement by Taney on law enforcement. 


A number of letters written by Taney are to be found in 
Correspondence of Andrew Jackson, edited by J. S. Bassett, Vols. 
V and VI, Washington, 1931; and in Tyler, Samuel, Memoir 
of Roger Brooke Taney, Baltimore, 1872. 

In addition to those, the following letters were found useful: 
To (Nicholas Biddle?) Maryland Historical Magazine , V 

(1910), 35-37- 

To Martin Van Buren, July 20, 1837, Van Buren Papers (Li- 
brary of Congress) . 

To Samuel Nott, August 19, 1857, Proceedings of the Massachu- 
setts Historical Society, XII (1871-1873), 445-47. 

To Franklin Pierce, August 29, 1857, American Historical Re- 
view, X (1904-1905), 358-59- 

To Franklin Pierce, June 12, 1 86 1, American Historical Review, 
X (1904-1905), 368. 

A letter from Taney to Jackson in 1838, and one in 1843 are 
quoted in part in Charles Warren, The Supreme Court in 
United States History, II, 36-38, Boston, 1932. 


"Taney's Letters to Van Buren in 1860," communicated by B. C, 
Steiner, Maryland Historical Magazine, X (1915), 15-24, 
quotes at length from letters written by Taney to Van Buren, 
who in the process of compiling his memoirs had asked Taney 
for his recollection of certain matters which had occurred in 
the Jackson administration. 


Speech in reply to his welcome before the dinner given in his honor 
at Frederick, Maryland, August 6, 1834, Tyler, Samuel, 
Memoir of Roger Brooke Taney y pp. 226-32, Baltimore, 
1872. This speech may also be found in the Daily Albany 
Argus, August 30, 1834, 

Speech in the court house yard at the festival given in his honor at 
Frederick, Maryland, August 6, 1834, Daily Albany Argus, 
August 29, 1834. These two speeches at Frederick are ex- 
cellent in their revelation of Taney's views of the issues at 
stake in the Bank struggle. 

Supplement to the Dred Scott opinion, September 1858, Tyler, 
Samuel, Memoir of Roger Brooke Taney, pp. 578-608. 

"Report of the Secretary of the Treasury on the Removal of the 
Public Deposits from the Bank of the United States, made to 
Both Houses of Congress, Dec. 4th, 1833," Public Documents 
and Proceedings of the Twenty -Third Congress, New York, 


Opinions as Attorney General of the United States. Taney's 
opinions as Attorney General are to be found in Official Opin- 
ions of the Attorneys General of the United States, compiled 
by B. F. Hall, Vol. II, 1825-1835, Washington, 1852. 

Roger B. Taney account of His Relations with U. S* Bank, dated 
at the beginning, September 14, 1849. 132-page bound 
volume in Taney's handwriting, acquired by the Library of 
Congress between June 30, 1929 and June 30, 1930. 



Adams, John, The Works of John Adams, edited by C. F. 
Adams, 10 vols., Boston, 1851-1856. 

Adams, John Quincy, Memoirs of John Quincy Adams, edited by 
C. F. Adams, 12 vols., Philadelphia, 1874-1877. 

Benton, Thomas H. 5 Examination of that fart of the Decision of 
the Supreme Court of the United States in the Dred Scott 
Case which declares the unconstitutionally of the Missouri 
Compromise Act, and the self -extension of the Constitution to 
the Territories, carrying slavery along with it, New York, 


, Speech of Mr. Benton of Missouri against the Renewal 

of the Charter of the Bank of the United States, in the Senate 
February 2, 1831, Washington, 1831. 

-, Thirty Years View, 2 vols., New York, 1858. 

Biddle, Nicholas, The Correspondence of Nicholas Biddle, edited 

by R. C. McGrane, Boston, 1919. 
Buchanan, James, The Works of James Buchanan, edited by 

J. B. Moore, 12 vols., Philadelphia, 1908-1911. 
Calhoun, John C., The Works of John C. Calhoun, edited by 

R. K. Cralle, 3 vols., Charleston and New York, 1851-1853. 
The Case of Dred Scott in the United States, New York, The 

Tribune Association, 1860. 
Clay, Henry, The Private Correspondence of Henry Clay, edited 

by Calvin Colton, New York, 1856. 
Congressional Globe. The Congressional Globe of various dates 

is referred to for speeches and debate. 
Daily Albany Argus, August 29, 30, 1834. 
The Daily Exchange, May 28, 29, 1 86 1 (Baltimore). 
Frederick-Town Herald. Various issues in 1803 anc ^ 1807 are 

referred to. 
The Globe (Washington). Various issues in 1831 and 1832 

were used. 
Jackson, Andrew, Correspondence of Andrew Jackson, edited by 

J. S. Bassett, 6 vols., Washington, 1926-1933. 


, Bank Veto Message, July 10, 1832, in Richardson, 

J. D., Messages and Papers of the Presidents } II, 5 7 6-9 1 , 
Washington, 1896. 

Jefferson, Thomas, The Writings of Thomas Jefferson, edited by 
P. L. Ford, 10 vols., New York, 1892-1899. 

Kendall, Amos, Autobiography of Amos Kendall, edited by W. 
Stickney, Boston, 1872. 

Kent, James, Commentaries on American Law, 1 2th ed., edited 
by O. W. Holmes, Jr., 4 vols., Boston, 1873. 

Madison, James, The Writings of James Madison, edited by Gail- 
lard Hunt, 9 vols., New York, 1910. 

Maury, Sarah M., The Statesmen of America in 1846, London, 


Miller, Samuel, Memoir of the Rev. Charles Nisbet, New York, 

Monroe, James, Exposition accompanying his veto message of 
May 4, 1822, in Richardson, J. D., Messages and Papers of 
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Briscoe v. Bank of the Commonwealth of Kentucky, 1 1 Peters, 

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Goddardv. Jacksonville, 15 111. 589 (1854) 

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Fed. 554 (1907) 
Houck v. Little River Drainage Dlst., 154 S. W. 739 (Mo. 

Jackson v. Lamfhire, 3 Peters, 280 (1830) 

Johnson v. Jones et al., 44 111. 142 (1867) 

Knoxvllle Water Co. v. Knoxvllle, 200 U. S. 22 (1901) 

Leisy v. Hardln, 135 U. S. IOO (1890) 

Magner v. People of Illinois, 97 111. 320 (1881) 

McCulloch v. Maryland, 4 Wheaton, 316 (1819) 

Marbury v. Madison, I Cranch, 137 (1803) 

Missouri v. Holland, 252 U. S. 416 (1920) 

Mugler v. Kansas, 123 U. S. 623 (1887) 

Munn v. Illinois, 94 U. S, 113 (1876) 

Nebbla v. New York, 291 U. S. 502 (1933) 

New Jersey v. Wilson, 7 Cranch, 164 (1812) 

Nlles v. Rhodes, J Mich. 374 (1859) 

Ogden v. Saunders, 12 Wheaton, 213 (1827) 

Oklahoma City v. Shields, IOO Pacific, 559 (1908) 

Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922) 

Peofle v. Gallagher, 4 Mich. 244 (1854) 

Pollock v. Farmers Loan and Trust Co., 157 U. S. 429 (1894) 

Pratt v. Burckhartt, 299 111. 20 (1921) 

Providence Bank <u. Billings and Pitman, 4 Peters, 514 (1830) 

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(Ga. 1913) 
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St. Louis Southwestern Ry. Co. v. Allen et aL, 187 Fed. 290 


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262 U.-S. 276 (1922) 
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State of Washington v. W. C. Dawson 6? Co., 264 U. S. 219 


Steamboat Orleans v, Phoebus, II Peters, 175 (1837) 
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Sturges v. Crowninshield, 4 Wheaton, 122 (1819) 
Stuyvestant v. Mayor of New York, J Cowen, 588 (N. Y. 1827) 
Territory v. Long Bell Lumber Co., 99 Pacific, 911 (Okla. 


Thomas Jefferson, The, 10 Wheaton, 428 (1825) 
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Tyson v. Banton, 273 U. S. 418 (1926) 
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Ware v. Hylton, 3 Dallas, 199 (1796) 
Whittington v. Polk, I Harris & Johnson, 236 (Md. 1802) 
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**'t3 """* 

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* _ ^ -vr-T TT / \ O yvQ 

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Chafee, Zechariah, Jr., Freedom of S fetch, New York, 1920. 
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vols., Boston, 1879. . . 

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Davis, Jefferson, The Rise and Fall of the Confederate Govern 

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Delaplaine, Edward S., Ch*f Justice Roger B. T*y--H 

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B. Taney-H, Career at the 
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Hegel's Philosophy of Right, translated by S. W. Dyde, London, 

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Hobbes, Thomas, Leviathan, London, 1887. (Morley's Uni- 
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Montesquieu, The Sprit of Laws, 6th ed., translated by T. Nu- 
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Morgan, J. H., Dickinson College, Carlisle, 1933. 
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1927. Volume I was cited. 
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States, Chicago, 1912. 
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The New York Times, May II, 12, 1918. 
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(1897). 353-55- 
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of Politics, London, 1925. 
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(Everyman edition). 
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Schouler, James, History of the United States of America, 5 vols., 
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(1895), 361-64 (1895). 


Taney, Mary F., "Roger Brooke Taney," Records of the Amer- 
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33 ~ 42 ' 
Thomas, J. H., Systematic Arrangement of Lord Cokeys First 

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T. de Bille, 2 vols., New York, 1916. 
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2 vols., Chicago, 1899. 

Turner, Frederick J., Rise of the New West, New York, 1906. 
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Legal Miscellany, II (1890), 449-60, 513-17. 
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Chief Justice of the United States, New York, 1865. This 

was an extremely bitter attack on Taney. 
Vattel, Emmerich de, The Law of Nations, Dublin, 1792. 
Vaughan, C. E., The Political Writings of Jean Jacques Rousseau, 

2 vols., Cambridge, 1915. 
Vinogradoff, Paul, The Collected Papers of Paul Vlnogradoff, 

edited by H. A. L. Fisher, 2 vols., Oxford, 1928. 
Waite, Charles B., "Roger B. Taney," The Chicago Law Times, 

II (1888), 3I7-327- 

Walter, J. A., A letter about Taney written to the Century Mag- 
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Warren, Charles, A History of the American Bar, Boston, 1911. 

, "Lincoln's 'Despotism' as Critics Saw it in 1 86 1," The 

New York Times, May 12, 1918. 

' , The Supreme Court and the Sovereign States, Princeton, 


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edition, 2 vols., Boston, 1932. 
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vols.j New York s 1929. 
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New Democracy, edited by R. S. Baker and W. E. Dodd, 2 

vols., New York, 1926. 


v. Sooth, 18, 31-32, 53, 
86-88, 90-91, 98, 153, 206, 207 
Adams, John, 84. n. 
Aliens, status of, 39 

American Insurance Co. v. Canter, 158 
Atlantic Monthly, criticises Taney, 20 

BALDWIN, Justice Henry, 30 n. 

Bank of the United States, Taney's part 
in struggle with, 16, 66-78; case in- 
volving claim, 47} mentioned, 114, 

Bank of the United States v. The 
United States, 47 

Bank of Washington v. State of Arkan- 
sas, 47 

Barbour, Justice Philip P., 124 

Beers v. State of Arkansas, 46-47 

Benton, Thomas H., 69 

Blackstone, Sir William, 43, 58, 59-60, 
107, 191 

Bodin, Jean, 41 n., 43 

Boyd v. Alabama, 50-51 n. 

Brandeis, Justice Louis D., 61 n., 99 n., 
112, 206 

Brewer, Justice D. J., 140 

Brig James Gray v. Ship John Fraser, 
et al., 128-29 

Brown v. Maryland, 90-130 

Bryan, W. J., 65, 67 

Buchanan, James, 98, 173 

Burke, Edmund, 172, 178, 195, 197 

Burke v. State, 143 n. 

\LHOUN, John C., 13, 82, 83, 92- 
93, 96 

Cambreleng, C. C., 66 n. 

Carroll, Charles, 12 

Charles River Bridge v. Warren Bridge, 
important Taney decision, 17; liberal 
decision, 18; quoted, 62 n., 78-79$ 
mentioned, 105,- police power, 106-20 

Chase, Jeremiah Townley, influence on 

Taney, 7, 34 
Chase, Samuel, 7n.j belief in natural 

rights, 24; theory of the nature of 

the Union, 84-85; natural law, 122- 


Chiskolm v. Georgia, 30, 87 
Citizens In the state, 37, 38, 39 
City of New York v. Miln, 104, 123-24 
Clay, Henry, opinion of Taney, 15 
Cohens v. State of Virginia, 54 n. 
Coke, Lord Edward, 63 
Common law, 60, 62, 63 
Commonwealth v. Alger, 122 
Compact theory, 27-29, 32, 34, 43, 52 
Constitution, 32, 36, 52, 54-55, 56-58, 

85-88, 89, 90, 93, 97, 99, 105, 107, 

155, 167-70, 19^-95, *99> 206-7 
Contract theory, 24 
Cooley, Chief Justice T. M., 123 
Crittenden, Senator J. J., 157 
Curtis, Benjamin R., description of 

Taney, 18-19$ mentioned 161, 170 
Curzon, G. N., Earl, 195, 196 

Exchange, The, 2OO 

Dartmouth College v. Woodward, no, 

Davis, Jefferson, 93 n. 

Davis, John, in 

Democracy, 25-26 

Dickinson College, 5 

Dorr Rebellion, 53 

Drayton, William H., 13 

Dred Scott case, decision regarded with 
hostility, 17, 19-20; important Taney 
decision, 18; gives clues to Taney's 
belief in compact theory, 28; sup- 
plement, 28, 36, 37, 84; quoted from, 
37-38, 84, 85$ mentioned, 138, 141, 
206 j discussed, 155-76. 



ELLIOTT, Thomas, ii 

Erie Railroad Co. v. Board of 
Utility Commissioners, 133 

Ex parte oilman, 188 

Ex parte Merry-man, important Taney 
decision, 185 Republican hostility to- 
ward, 19; discussed, 185-955 men- 
tioned, 33, 53, 206, 209, 211 

Ex parte Milligan, 189 n., 191-92, 195 

FEDERALIST, The, 55, 89, 93 

Federalists, 24-25, 925 Federalist-con- 
trolled Court, 26 
Field, David Dudley, 191 
Field, Justice Stephen J., 50 n. 
Fitzpatrick, Senator Benjamin, 159 
Fleming, et al. v. Page, 32, 90 

GARONNE, The, i 4 g 

Gene 3 see Chiej v. Fitzhugh, important 
Taney decision, 18$ break with rule 
of stare decisis, 61, 62, 99-101 

Gibbons v. Ogden, 85, 109 

Globe, The, 69 

Government, viewed as agent of sov- 
ereign, 48-49 

Grants-in-aid, 103 

Grier, Justice Robert O, 171 

Groves v. Slaughter, 150-51 

Gruber, Reverend Jacob, 142-44, 178- 

H.AMILTON, Alexander, 49, 55 n. 

Hammer v. Dagenhart, 132 

Hegel, 193 

Hobbes, 41 n. 

Holmes, Justice Oliver Wendell, 123, 
133, 140, 176 

Holmes v. Jenntson, 97-98, 128 

Hughes, Chief Justice Charles E., ref- 
erence to Taney, 20-21 


Iredell, Justice James, 87 

JACKSON, Andrew, attracts Feder- 
alists, 12-135 correspondence with 

Monroe, 13; appointees on the Su- 
preme Court, i6j Bank veto mes- 
sage, 50, 60, 77-78; bank struggle, 
66} letter to, 725 letter to, 74, 102, 


Jacksonian democracy, theory expressed 
by Taney, 3, 27; at time of Taney's 
appointment to the Court, 25; pro- 
duced no great political theorists, 27; 
Taney a leader, 66; mentioned, 65, 

Jay, Chief Justice John, 30 

Jefferson, Thomas, 65, 66 n., 75, 76, 
91-92, 96, 146-47, 156; 212 

Jeffersonfan Democracy, 65, 92 

Johnson, Reverdy, 15, 21, 90 n., 108 

JX.ANSAS, slavery in, 156-58 
Kennett et al. v. Chambers, 32 n, 
Kent, Chancellor James, 6 1 n., 117 
Kentucky v. Dennison, 32, 44, 85, 101- 

2, 151 

Key, Francis Scott, 10 
Knoxville Water Co. v. Knoxville, 119 

LAFOLLETTE, Robert M., 65-66, 

68 n. 

Laski, Harold J., 213, 214 
Latrobe, John H. B., description of 

Taney, 19 

License Cases, 17, 18, 51, 54, 130-40 
Lincoln, Abraham, 197-99 
Lippmann, Walter, 213, 214 
Livingston, Edward, 66 n. 
Lloyd, Henry D., quoted, 80 
Locke, John, 23, 24 n., 25, 26, 41 n., 

51 n. 
Luther v. Borden, 32, 53, 104 

McCULLOCH v. Maryland, 87, 95 
McLane, Louis, 66 n. 
McLean, Justice John, 160-61, 171 
McReynolds, Justice James C., 140 
Madison, James, 55, 89, 93-94 
Mager v. Grima, et al., 46 
Mar bury v. Madison, 55 
Marshall, John, 14-16, 24, 54 n., 55, 
61 n., 78, 85, 87, 95-98, 104, 108- 



130, 140, 188, 191, 

10, 112, 123 
197, 207-8 

Martin v. Waddell, 84 

Maryland, Declaration of Rights, 34 

Mason, Senator James M,, 159 

Merryman, John. See Ex parte Merry- 

Missouri Compromise, 160, 165, 170-71 SsWARD, William H., 157, 173-74 

Mitchell v. Harmony, 182-84 

Monroe, James, 34 

Montesquieu, 35 

Roosevelt, Theodore, period of trust 

busters, 76 

Ross, E. A., quoted, 73 n. 
Rousseau, Jean Jacques, 22, 23, 26, 33, 

35, 41-42, 43, 49, 52 n., 65, 203-4 
Rowan et al. v. Runnels, 104 


I ATURAL rights, 24, 27, 28, 40 
Nebbia v. New York, 136 
Nelson, Justice Samuel, 160 
New York Times, 190, 193, 200-201 
New York Tribune, 173 
Nisbet, Dr. Charles, 5-7, 197 
Nott, Reverend Samuel, 144 

\JJilO Life Insurance and Trust Co. 

v. Debolt, 50, 80, 205 
O'Neil, Peggy, 13 

Jr AINE, Thomas, 29 n. 

Parish v. Ellis, 62 n. 

Passenger Cases, 60, 89, 101, 124-27, 

Paterson, Justice William, 55 

Pennsylvania v. Wheeling Bridge Co., 
62 n. 

Perrine v. Chesapeake and Delaware 
Canal Co., 79 

Pierce, Franklin, 158 

Pitt, William, 196 

Police Power, states cannot barter 
away, 50-51; mentioned, 104; defini- 
tion, 1 06-8; early development In the 
United States, 107-10; as affected by 
the Charles River Bridge decision, 
no-20; extended by Taney, 121-40 

Polk, Senator Trusten, 200 

Prigg v. Pennsylvania, 104, 152-53 

J[\.HODE Island v. Massachusetts, 30 

n., 44 
Richmond Enquirer, The, 174 

Shaw, Chief Justice Lemuel, 122 

Sovereignty, 27, 29-105, 192, 202-14 

Stare decisis, 6 1 

Stephens, A. H., 93 n. 

Stone v. Mississippi, 51 

Story, Justice Joseph, 61 n., 82, 84 n., 

96, 104, 105, 116-17, 124, 152, 188, 


Strader et al. v. Graham^ 150, 168 
Starges v. CrotcninsMeld, 95, 97-98, 

1 08 

, Michael, 4, 5 

Taney, Monica Brooke, 4, 5 

Taney, Roger B., expression of theory 
of Jacksonian Democracy, 35 author 
of Dred Scott decision, 4; early life, 
5-10; attitude toward War of 1812, 
10; member of State Senate, 10-11; 
removal to Baltimore, ii; standing 
as a lawyer, 11-12; changes to Dem- 
ocrat, 12; adviser of Jackson, 13- 
14; becomes Chief Justice, 14; re- 
sult of appointment, 15-16; dem- 
ocratic philosophy, 16-17, 210-12; 
description of, 18-19; death, 19; 
opinions of critics, 19-21; belief In 
sovereign power of state, 22, 202-3 ; 
individual liberty, 22; intellectual 
background, 22-23 5 spokesman of 
Jacksonian theory, 27; belief in so- 
cial compact, 27-29; belief in legal 
rights, 27-28; theory of sovereignty, 
29-64; nature of the Union, 30-38, 
42, 82-105; similarity to St. George 
Tucker, 32 n.; similarity to Rousseau, 
22, 33, 36; similarity to Monroe, 
34; belief in supremacy of law, 36; 
obligation of International law, 445 
distinguishes between government 



and sovereign, 485 differs from Rous- 
seau, 49; author of Bank Veto Mes- 
sage, 50 n. ; construction of police 
power, 51 n. ; sovereign will de- 
termined legally, 52-545 the consti- 
tution as the supreme law, 54, 206, 
207$ judicial review, 54-55; differ- 
ence between law and constitution, 
55-56; interpretation of constitution, 
56-58; Interpretation of law, 58-64; 
belief in popular sovereignty, 65, 
212; champion of popular control of 
government, 65, 66, 80, 8i; part in 
bank struggle, 66-78; construction of 
corporation charters, 78-80, 114-20; 
part In development of police power, 
1 06, 1 08; Charles River Bridge case 
and police power, 110-20; extension 
of the police power, 121-40; defini- 
tion of police power, 134-36; per- 
sonal attitude toward slavery, 141- 
47; judicial treatment of slavery 
question, 147-54; Dred Scott case, 
155-76; individual rights, 177, 201; 
free speech, 178-80; property rights 
in war-time, 180-85; decision in the 
Merryman case, 185-95; legal nature 

of the state, 203-6; belief in im- 
portance of Supreme Court, 207-10 
Taylor, John, 75, 77, 91-92, 96 
Taylor et al. v. Carryl t 90, 99 
Thomas, John Hanson, 8 
Treitschke, Heinrich von, 193 
Trumbull, Senator Lyman, 158 
Tucker, St. George, 32 n., 84 n. 

UNITED States v. Goo ding, 143 n. 
United States v. Guilem, 180-82 
United States v. M 'orris } 149 
Unjust. Judge, The, 20 

VAN Buren, Martin, 170-71, 207-8 
Vattel, 91 n. 

WAITS, Chief Justice M. R., 51 

Ware v. Hylton, 84 

Warren, Charles, 60, 85 n., 100 

Wayne, Justice James M., 171 

Webster, Daniel, 82, Hi, 112 

Williams v. Ash, 150 

Willoughby, W W., quoted, 191 

Wilson, James, 94-95, 96 

Wilson, Woodrow, 66, 76 

World, The (New York), 190, 193, 


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